The South Carolina legislature is currently considering a bill that would legalize the use of medical marijuana in the state. The bill, H.3660, labeled the South Carolina Compassionate Care Act, would allow patients who have been diagnosed with a “debilitating medical condition” to obtain a registry identification card from the South Carolina Department of Health and Environmental Control which would allow them to possess up to two ounces of cannabis (or “cannabis products in an amount equivalent to two ounces of cannabis”) solely for medical use.
While marijuana advocates may view H.3660 as a step in the right direction, if passed in its current form the South Carolina Compassionate Care Act would still represent one of the strictest medical marijuana laws in the country. Among other limitations, the law would not allow cardholders to smoke cannabis, and it would require a diagnosis of a specifically-listed medical condition (such as cancer, multiple sclerosis, or post-traumatic stress disorder), or another chronic or debilitating condition, “for which an opioid is currently or could be prescribed by a physician based on generally accepted standards of care.”
But, although H.3660 may be limited in scope, it provides some fairly expansive protections for patients who qualify to use medical cannabis. This includes one protection that is particularly noteworthy for South Carolina employers.
Proposed Law Would Prevent SC Employers from Disciplining Medical Marijuana Cardholders Who Test Positive
Under H.3660, South Carolina employers would be prohibited from taking adverse employment action against registry identification cardholders who test positive for marijuana. In order to terminate or take other disciplinary action against a medical marijuana user, an employer would need to be able to establish that the user was under the influence of marijuana in the workplace. The bill also plainly states that “[n]o employer may discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location, or privileges solely on the basis of the employee’s status as a cardholder.”
However, the South Carolina Compassionate Care Act would not require employers to:
- Make accommodations for the use of medical cannabis at any place of employment;
- Allow cardholders to ingest medical cannabis at work; or,
- Allow employees to work under the influence of medical cannabis.
H.3660 also states that employers may not be penalized for employing cardholders, and that the rights afforded to employees under the law, “do not apply to the extent that they conflict with an employer’s obligations under federal law or regulations, or to the extent that the rights would disqualify an employer from a monetary or licensing-related benefit under federal law or regulations.”
Due to the fact that marijuana can have both delayed and lingering effects, this could put employers in a difficult spot: Without additional documented evidence that a cardholding employee is under the influence, taking disciplinary action following a positive drug test could expose the employer to employment litigation. At the same time, failing to take disciplinary action against an employee who is under the influence on the job could expose the employer to perhaps even greater liability if the employee causes an accident or engages in other conduct giving rise to a third-party tort claim. If a drug test raises a concern about an employee’s level of impairment but is not itself grounds for discipline, employers may struggle to find ways to protect themselves without running afoul of the South Carolina Compassionate Care Act.
For employers with facilities both in and outside of South Carolina, H.3660 could present some difficult compliance challenges as well. With H.3660 departing from the standards already set in other states, multi-state employers would need to carefully structure their employment policies and testing procedures to ensure that they comply with the South Carolina Compassionate Care Act locally while continuing to comply with the existing laws elsewhere.
Considerations for South Carolina Companies that Employ Georgia and North Carolina Residents
Until last month, eligible Georgia residents could obtain a “Low THC Oil Registry” card from the Georgia Department of Public Health, but they could not legally grow or buy cannabis in the state. This changed with the enactment of Georgia’s Hope Act on April 17. The new law authorizes a limited number of in-state producers to cultivate marijuana for medical use, and it allows pharmacies to sell medical marijuana to patients. The law also opens on the possibility for the authorization of in-state dispensaries. However, according to the Marijuana Policy Project, “[i]t is expected to take at least a year before legal sales begin.”
In North Carolina, the law is in a state of flux. A broad medical marijuana bill is pending in the state legislature (currently, medical use of CBD is permitted only for qualifying patients with intractable seizure disorders), and a bill has been introduced in the Senate that would authorize possession of up to three ounces of marijuana for personal (non-medical) use. Similar bills introduced in 2018 were unsuccessful.
Once medicinal marijuana goes on sale in Georgia, and if North Carolina’s governor signs a medicinal or recreational marijuana bill into law, what will this mean for South Carolina companies that employ Georgia and North Carolina residents? While an out-of-state recreational marijuana law may ultimately have little impact (in-state use would still be illegal, and the South Carolina Compassionate Care Act’s drug testing restrictions would not apply), in-state employers could face some difficult questions when it comes to dealing with Georgia and North Carolina cardholders. What are South Carolina employers’ rights and obligations if an out-of-state cardholder tests positive? Will employers need to treat in-state and out-of-state cardholders differently? If so, could this disparate treatment lead to even more-complex legal challenges? These are all questions that are yet to be answered.
Speak with a South Carolina Employment Lawyer in Confidence
Gignilliat, Savitz & Bettis LLP is a full-service South Carolina employment law firm dedicated to protecting the interests of employers. If you have questions about the impacts of state medical marijuana laws and would like to speak with an attorney, please call 803-799-9311 or contact us online today.