A new case challenging an applicant’s dismissal due to medical marijuana use is raising concerns about what kind of legal protection job seekers and facilities have — especially amid a national nursing home workforce shortage. 

Seth Unger filed a lawsuit against a Pennsylvania long-term care facility alleging discrimination under the Americans with Disabilities Act, saying that the 1990 law protects his use of marijuana to alleviate anxiety, for which he has a prescription. 

Unger applied to Centre Care Rehabilitation and Wellness Services in January for a job as a nursing assistant student, but the interview ended after he said he used marijuana and his application was terminated, according to reporting in the Centre Daily Times. 

As more states approve marijuana for medical and recreational use, its use and how potential employees approach the issue is becoming trickier. 

“Under most circumstances, if you use medical marijuana outside of the workplace and during off-hours, that is your business,” according to Weisberg Cummings, an employment law group in Harrisburg, PA. “Under the Pennsylvania Medical Marijuana Act, employers cannot discriminate against employees because they are medical cannabis cardholders, especially if your status does not interfere with your performance on the job.”

Pennsylvania legalized medical marijuana in April 2016. The state has 23 conditions for which the drug can be prescribed, including anxiety disorders. The law firm’s blog noted that a job applicant “might” have a case if a potential employer refuses to hire them solely based on medical marijuana usage. 

Marijuana — medical or otherwise — remains illegal at the federal level, although the US Department of Health recommended in August that the drug be moved from a Schedule I to a Schedule III controlled substance. Most nursing homes accept federal funding and therefore must strictly adhere to federal laws. Other Schedule III drugs include Tylenol with codeine, ketamine and anabolic steroids. 

The decision is ultimately up to the US Drug Enforcement Agency, but reclassifying marijuana is not the same as legalizing it. CBD products — derived from the active ingredient in cannabis but that does not result in a user becoming “high” — are legal and sold over-the-counter in all states, and can result in a positive drug test. 

Marijuana, either just medical or medical and recreational, is legal in 38 states and the District of Columbia. Jennifer Long, special counsel with Duane Morris, which has a cannabis practice, told McKnight’s Long-Term Care News on Tuesday that lawful use of marijuana per state laws is making for some difficult issues for nursing facilities. 

“Cannabis remains a federal controlled substance, making its use unlawful under federal law even in the many states that have legalized medical or adult use,” she said. “However, many issues related to employees are also governed by applicable state laws. This means that employers will have to comply with the state laws of the employee’s work location when determining how to handle cannabis related actions against an employee.”

Illinois, for example, lets employers maintain “reasonable workplace drug testing policies” that prohibit someone from reporting to work impaired. In New Jersey, employers are prohibited from taking adverse actions based on an employee’s use of cannabis alone.  

“There are a growing number of facilities that have decided to remove cannabis from their applicant testing requirements,” Long said. 

Neville M. Bilimoria, a partner at Duane Morris and post-acute care specialist who also is part of the law firm’s cannabis practice, added cautionary language for facilities since the drug is still illegal on the federal level. He said they need to be wary of federal surveyors or others learning about marijuana usage by residents or staff. 

“A federal agent could say you’re in violation of federal law,” Bilimoria noted, referencing the contract that facilities sign when they participate in Medicare and Medicaid. “Theoretically, that could jeopardize your status.”