Every day I do legal research on at least one of the my cases. Staying current on the law, burdens of proof, abuse of discretion standards, and learning which experts the appellate courts reject are important legal tasks. During a recent afternoon research session I discovered an amazing case that ratifies a consistent legal objection I make in every case.
I spend a majority of my time helping medical professionals secure and keep their professional license. Recently, a physician contacted me to discuss his group practice employment contract and his hospitalist job. Reviewing his employment contract enlightened me on numerous ways a single licensing issue can impact medical professionals' employment and future employability.
Newspaper trumpet the legalization marijuana in several states. Articles track implementation of medical marijuana production, products, and sales in states with existing medical marijuana laws. Everyone is investing in marijuana producers and distributors. On November 12, 2018 the Philadelphia Inquirer reports with fanfare there are 84,000 Pennsylvanians registered as medical marijuana patients. The article emphasizes medical marijuana is not treating the medical condition stated on the licensee's card. Rather it is used to control medical symptoms of the 21 different serious medical conditions. Importantly, medical marijuana is replacing opiates to control pain and other disruptive physiological manifestations that originate from a diagnosed medical condition. This is success.
Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E.) is the forefront of drunk driving enforcement in the age of legal and medical marijuana. State Troopers are trained to identify impaired drivers by substances other than alcohol. These officers receive training on Standard Field Sobriety ("FST") and other field tests, and eye tests involving the convergence, pupil size, and reaction to light as well as methods of determining ingestion of the substance and classification of drugs (illegal and legal) by the type of impairment.
My blogs focus on the intersection of life and your professional license. A significant public policy debate is raging about medical marijuana, recreational marijuana usage, and the licensed professional. This is you - nurses, pharmacists, doctors, or any other Pennsylvania or New Jersey licensed professional. I recently weighed in on this conversation in an article published in the National law Journal, American Law Media's website. The Professional Licensee and Medical Marijuana: Just Say No! (hit the 411 Link on my web page). 411 Medical Marijuana and the Licensee On August 10, 2018, a federal judge issued a decision affirming an employer's ability to discipline and terminate an employee who fails an employment related drug test for medical marijuana. The employee, a forklift operator, with a known prior work-place injury was taking prescription opiate medications, was asked to take a drug test as a condition of continued employment. The employer compelled a drug-free workplace consistent with federal occupational health and safety work conditions. The employee indicated he would fail the drug test because he ingested prescription medicine, specifically medical marijuana. The employee argued the decriminalization of medical marijuana under New Jersey's Compassionate Use Medical Marijuana Act ("CUMMA") and Law Against Discrimination ("LAD") compelled the employer to make an accommodation. The employer denied an accommodation, terminating the employee for refusing to take the drug test. (The same result would occur if the employee tested positive for marijuana.) The employee sued in federal court. The court determined neither CUMMA nor the Law Against Discrimination takes priority over an employer's drug free work place rule. The employer was merely enforcing OSHA's and the federal criminal law regarding drug free work places. Here, the employer argued, in the work place the federal supremacy clause voided states' laws allowing for medical marijuana and the decriminalization of recreational marijuana usage. New Jersey and Pennsylvania are at will employment states allowing for employees to be fired for good reason, bad reason, or no reason at all. The current federal and state versions of the American With Disabilities Act have created a legal landscape in which it is unlawful to discriminate against current or potential employees who suffer from a disability. These laws seek to level the employment hiring playing field - a disability should not preclude hiring in a job they could do. These employees can still be fired or not hired if the extent of the disability precludes the performance of the particular employment. In this case, the court evaluated the fork lift operator's claim under the four prong test determining that a disability was present, medically based, and constituted a physical handicap. The court determined the employee was qualified to perform the essential functions of the job and that his handicap should not preclude him from enjoying equal access to employment due to discrimination. However, the court framed the issue thereafter as distinguishing a treatment (medical marijuana) from a disability (needing a wheelchair). In this case, as with all medical marijuana cases, the employer has a drug-free workplace condition of employment. The court was tasked with determining the legality a drug-free workplace as a condition of employment regardless of the medical treatment needs of the employee. New Jersey's criminal code 2C:35-18 and administrative law 24:6I-6(a) eliminate criminal and civil/administrative penalty for medical marijuana use. However, most states also allow employers to not accommodate the medical use of marijuana in the workplace. As well federal law still prohibits the use and possession of marijuana. Unfortunately, medical marijuana cases involve this singular unique determining factor; existing federal law stating marijuana is illegal. This is the distinguishing factor between going to work under the influence of prescribed opiate painkillers and prescribed medical marijuana. This case involves an individual operating a forklift. Many of my clients are nurses, pharmacist, surgeons, realtors, engineers, respatory therapists, radiology technologist, pulmonary specialist, massage therapist, ophthalmologist, optometrists, dermatologist. Each of these professionals will not be permitted to work in an environment where their professional judgment, skills, and capability is compromised as a result of illegal use of marijuana or the necessary medicinal use of marijuana in a therapeutic dose as a result of suffering from a medical condition that is not able to be treated with any other medication.