Legal and practical challenges collide on an issue with many complications.
By Tomek Koszylko and Pamela Kaufmann
Imagine you are the administrator at a multilevel retirement community. How would you respond to the following scenarios?
1) Your activities director informs you that she uses medical marijuana, as recommended by her doctor, to treat knee pain. She uses marijuana-infused lemon drops, which she keeps in her purse. She explains that the product contains no THC and has no psychoactive properties.
2) A resident has mild dementia and requires assistance with daily activities, including taking medications. Learning that marijuana can improve symptoms of dementia, she obtains a medical marijuana card and purchases a vaporizer for inhaling marijuana oil. She asks you to store the items with her medications, and to help her administer it.
3) An independent living resident proposes forming a medical marijuana club with 15 other residents. He asks to reserve space in a common room for monthly meetings.
As senior care and housing attorneys, we routinely receive inquiries about medical marijuana at clients’ communities. Can the community ban all use of marijuana? Can it fire an employee, or evict a resident, for using it? If it allows marijuana use, what limits can it implement?
The answer depends on your state’s laws, your organization’s values, your residents’ demographics and your tolerance for risk.
State and federal laws make a difference
To date, 28 states and the District of Columbia have legalized medical marijuana use. Eight of these states have also legalized recreational marijuana. Although the details vary from state to state, medical marijuana laws generally contain the following elements:
- A list of qualifying medical conditions to use medical marijuana
- A process to obtain access to medical marijuana, such as registering with a confidential state database or obtaining a special registration card
- A maximum amount the patient can possess in a given time period
- Designation of where the patient can use medical marijuana (at home, in private) and where he/she cannot (in public spaces)
Many states also allow medical marijuana patients to select a “designated caregiver” who can purchase, deliver and even assist the patient with administering medical marijuana. Some state laws prohibit landlords and employers from taking action against a tenant or employee solely based on his or her status as a medical marijuana patient.
Regardless of state law, marijuana continues to be illegal under federal law. Marijuana is classified by the Drug Enforcement Administration (DEA) as a Schedule I drug, in the same category as heroin and LSD.
As such, marijuana (including its derivatives) has no acceptable medical use under federal law. It cannot be prescribed by physicians, and participants in federal programs such as Medicare, Medicaid and HUD cannot implement policies permitting its use.
Because federal law supersedes conflicting state law, medical marijuana is a potential target for federal law enforcement agencies. During the prior administration, federal law enforcement agencies such as the DEA and Justice Department broadly deferred to the states to oversee and prosecute marijuana laws. However, it is not clear whether federal agencies under the current administration will adopt the same approach.
Practical considerations to implementation
In light of current law, what activities should providers allow at their communities? We are frequently asked the following questions:
Can we ban all forms of marijuana?
Generally, yes. Since marijuana is an illegal drug under federal law, providers are not required to allow medical marijuana. However, you should consult state law. If you do not participate in a federal program such as HUD, Medicare or Medicaid, your state law may protect patients from discrimination.
Can we fire an employee or reject an applicant who uses medical marijuana?
The answer depends on whether your state law protects employees from adverse action based solely on their status as medical marijuana patients. Generally, employers are free to implement a drug-free workplace policy that prohibits the use of drugs, including marijuana, by on-duty employees. However, whether this policy can extend to an employee’s off-duty activities may depend on your state law and whether the off-site use impairs his or her performance at work.
Can we require employees to leave their marijuana at home?
Yes. Since employees are not allowed to use marijuana in the workplace, they should likewise not bring it on campus.
Can we limit acceptable forms of marijuana?
Yes. Many providers have campus-wide nonsmoking policies. Providers that allow medical marijuana may limit it to certain forms, such as edibles, oils and ointments. They can also allow residents to use vaporizers in their apartments. These devices do not ignite the product and do not produce smoke. The vapor dissipates without leaving an odor.
Can we centrally store medical marijuana for assisted living residents?
The answer depends on your licensing agency’s rules for centrally storing medications. Some states require medications to be centrally stored in prescription containers listing specific patient and dosage information. Medical marijuana containers may not satisfy these rules. Providers should contact their licensing agency to determine what it will allow. They should also work with risk management and legal counsel to consider how to address the risks of theft or “sampling” by staff.
Are there alternatives to centrally storing medical marijuana?
Yes. Some providers allow residents who can manage their own medications to keep medical marijuana in a lockbox in their apartment. For residents unable to manage their own medications, some providers allow a designated caregiver to deliver and help the resident administer medical marijuana — and then remove the remaining marijuana.
What about resident safety?
Marijuana can affect balance, judgment and reflexes. Providers must therefore consider whether it is safe to operate a car or a motorized cart after using marijuana. A reasonable response may be to prohibit operation for a reasonable period after use. However, the degree of impairment may depend on the type of marijuana used, its THC content and the resident’s physical reaction to the drug. Licensed providers should also review a resident’s care plan to address increased risk of fall and injury.
How do recreational and medical marijuana laws differ?
Generally, recreational marijuana laws decriminalize the adult use of marijuana but do not confer any special rights on recreational marijuana users. In contrast, medical marijuana laws give special rights of access to people with certain serious illnesses. Providers may thus choose to allow certain forms of medical marijuana but prohibit all recreational use.
So what do we do?
State medical marijuana laws are proliferating, reflecting a wave of public opinion that regards medical marijuana as a legitimate alternative to prescription drugs. Providers should confront this issue now.
You should consider what policies best express your values and residents’ needs and implement a policy that reflects these values.
Whatever your policy, you should be prepared to discuss it openly with both residents and staff.
Pamela Kaufmann is a partner and Tomek Koszylko is an associate at the San Francisco law firm of Hanson Bridgett LLP, with deep legal experience in many seniors housing and healthcare issues.