On Election Day last November, eight states voted to legalize recreational or medical marijuana, bringing the total number that have legalized it to 29. Sixty-five million Americans now live in areas that authorize adult recreational use of marijuana and more than half of all Americans have access to medical marijuana. But there was another winner last November who is likely to put a crimp in the plans of the pro-cannabis crowd. Jeff Sessions, the new Attorney General, has been a fierce critic of the legalization movement, calling marijuana reform a "tragic mistake." In light of these developments, it is a good time for a review of the changing laws--in particular, the question of whether an employer is required to accommodate an employee's medical use of the drug?
The Rules About Employees' Medical Marijuana Use
Let's look at a hypothetical case: Bill, who occasionally uses medical marijuana to treat his chronic back pain, carries a medical marijuana card. He has never failed a drug test in the past and his work performance has not suffered. When he fails a drug test in violation of workplace policy, Bill claims it has been several weeks since he last used the substance and his work has been unaffected. Are you, as his supervisor, obliged to accommodate Bill?
The answer is "maybe." Few state laws currently require employers to make accommodations for medical marijuana use, and even those that do make exceptions for safety-sensitive positions and for companies required to maintain a drug-free workplace in order to retain their licenses or federal contracts or grants. Nor does the Americans with Disabilities Act (ADA) require an employer to accommodate the use of illegal substances prescribed by a doctor. Those caveats aside, the fact that Bill has a medical marijuana card generally means that he has a medical disability and to deny ADA accommodations based solely on the fact that the worker used marijuana can be risky, says Shari Lau of the Society for Human Resources Management (SHRM). Under New York state's Human Rights law, for example, medical marijuana users are "disabled." As a result, under the state ADA, employers must engage in an interactive process to determine reasonable accommodation. For a review of the laws in the District of Columbia, Maryland and Virginia, click here.
Lau suggests taking several steps well in advance of an issue:
• Get medical documentation on the disability;
• Understand how the person is limited and make accommodations required for the disability itself;
• Determine if leave is required under the federal Family and Medical Leave Act;
• Consult with an attorney who specializes in employment law regarding your policies.
Be aware that, in most states, employers are free to discipline employees who use marijuana if it affects the safety and welfare of the workplace. And for now, employers can continue to rely on the drug's federal classification as a Schedule 1 controlled substance. However, the speed and complexity with which states have begun to legalize its use suggests that employment policies will need to adjust, and to steer clear of legal issues, they should be clearly stated and enforced in a uniform and even-handed manner.
If you'd like more information about this topic, please contact EAPA.
We'd like to acknowledge Tamara Cagney, President of the EAP Association, and Shari Lau, Manager of SHRM's HR Knowledge Center for their contributions to this article. Edited by Greg Kelly.
COPE was a founding member of the Workplace Collaborative, a national, invitation-only, collaborative of EAPs established in 1994. The Collaborative is composed of independent organizations representing the best-in-class approaches to employee assistance. This group of innovative thinkers is passionate about excellence in the EAP field and committed to being a model for the industry.
If you are interested in knowing how marijuana laws may be impacting employment policy in other states, contact us at firstname.lastname@example.org. We'd be pleased to put you in touch with a Collaborative member.