By Pamela Miller, OD, FAAO, JD, FNAP
Oct. 14, 2015
SYNOPSIS
Medical marijuana is legal in many states—and that poses legal questions. Can ODs prescribe it? What if an employee is using it?
ACTION POINTS
KNOW PRESCRIPTION LIMITATIONS. No U.S. state currently allows ODs to prescribe marijuana.
KNOW YOUR RIGHTS. You are not legally required to accommodate an employee who has a prescription for medical marijuana.
NOTE LIABILITY. If an employee under the influence makes a mistake that injures a patient, the practice owner will ultimately be held responsible.
Twenty-three U.S. states now allow medical marijuana. The questions some ODs may be asking: If patients ask for prescriptions for this drug, am I allowed to prescribe it? And how do I handle requests from employees to work under the influence of medically prescribed marijuana?
Can an OD Prescribe Medical Marijuana?
Can you prescribe medical marijuana? This is an easy one: No. No state in the U.S. allows optometrists to prescribe medical marijuana. An appropriate response if a patient presses you for medical marijuana would be very simple: “No, that’s not something I can prescribe. There are a lot of drugs I can prescribe–when I feel they are necessary–but medical marijuana is not one of them.”
Do I Have to Allow Employees to Work Under the Influence of Marijuana?
What should I do about my practice drug policy for employees? If an employee with a bad back, or an anxiety disorder, hands me a slip from another doctor with a prescription for medical marijuana, does that mean I have to nod meekly and allow the employee to work under the influence?
If an employee is pressing you to accommodate their medical marijuana prescription, you should know that you don’t have to–that you don’t have a legal responsibility to accommodate them.
Marijuana is still illegal under federal law, so employers are still free to forbid employees from working under the influence of the drug. If you have an employer who says it is prohibited, you cannot claim a right under the Americans With Disabilities Act to take marijuana while on the job, or to work while under the influence of it. You have so much latitude as an employer that you don’t even have to tell an employee that you prohibit them from coming to work under the influence of marijuana. You can administer a drug test at your office with no warning, and if an employee tests positive for marijuana, you have the right to terminate them.
It would be prudent to state in your Office Policy Manual that you have the right to require testing for illegal drugs. Any such verbiage should be approved by your legal advisor to make certain that you comply with the laws in your state.
Even states with lenient marijuana laws, like California and Colorado, have upheld the employer’s right to terminate an employee who is taking medical marijuana. The California Compassionate Use Act, for example, protects the employee from criminal liability, but does not protect them from employment termination.
It is important to know that even if recreational marijuana is legal in your state, your local city may have an ordinance against it. Of course, medical and recreational marijuana may well have different laws or ordinances governing their use or sale in your area. Regardless, as an employer, you have the right to determine what is allowed in your office with respect to your employees.
As a Health Care Provider, Do You Want Employees Under the Influence?
It’s best to set a no-drugs standard, that includes medical marijuana, in your practice. If your care is called into question for any reason, and it is found that one or more of your employees was under the influence of marijuana (or any other drug that might affect job performance for that matter), your practice is in danger of a lawsuit, or even of being shut down.
Even if your practice already has a no illegal drugs policy, it would be a good idea to review your policies at your next staff meeting, including clarifying that even those with prescriptions for medical marijuana are prohibited from using the drug while employed by your practice. If your practice administers drug tests, you also could warn employees that you will be administering the tests without warning. You don’t have to clarify or warn about any of these things, but it can make disputes with employees less likely if everyone understands the practice’s policy and your rights as an employer.
In addition to reviewing your drug policy in meetings, it helps to have an employee handbook, online and in printed form, that outlines your policy on drugs, including medical marijuana.
At my practice, we ask employees about all drugs they use, legal, as well as illegal. It is up to a doctor to determine whether a drug like Xanax or another mental health drug, will impact an employee’s performance enough that patient safety is threatened.
You have no legal requirement to do so, but one compromise when it comes to medical marijuana, or any other drug that may affect job performance, is to have the employee take a leave of absence, or to have them work on a modified schedule.
Remember, the practice owner will be held legally responsible if a staff member under the influence of any drug–let alone medical marijuana–makes a mistake that results in a patient getting harmed.
Pamela Miller, OD, FAAO, JD, FNAP, has a solo optometric practice in Highland, Calif. She has a law degree, holds a therapeutic license, is California State Board-certified and glaucoma-certified to prescribe eye medications, and offers comprehensive vision care, contact lenses, visual therapy and low vision services. To contact her: drpam@omnivision.com.
