By:  Amy Epstein Gluck

So, a couple of weeks ago, I spoke at the Cannabis Law Summit about marijuana in the workplace to a room full of industry experts.

I did so for two reasons:

First, business owners, CEOs, and HR departments are asking about how they should contend with employees who take medical marijuana in states where it is legal.

Second, to date, approximately 30 states and the District of Columbia have legalized marijuana for medicinal use (and nine have legalized it for recreational use). Yet, marijuana remains illegal under federal law. The Controlled Substances Act (“CSA”) lists cannabis as a prohibited Schedule 1 illegal drug.

So, for an employment lawyer fascinated with all things that affect the workplace, I figured this would be a meaty topic to discuss. And it was!

There’s a natural tension between this federal law prohibition and state laws, and employers are not sure what they can prohibit and whether they have to provide “reasonable accommodations” to medical marijuana cardholders since the Americans with Disabilities Act (the “ADA”) does not apply.

Indeed, the ADA excludes from protection “an individual who is currently engaging in the illegal use of drugs” from its definition of an “individual with a disability,” with one very limited exception. As a Schedule 1 drug under the CSA, taking marijuana excludes an employee from ADA protection.

So, as you might guess, my answer to most questions posed by business owners and HR professionals at the Summit was—it depends on your state.

State Laws Regarding Medical Marijuana and the Workplace

Some states, like New York, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada, just to name a few, have laws that contain explicit anti-discrimination provisions protecting employees who are medical marijuana cardholders.

In New York, a certified medical marijuana patient must be deemed as having a “disability” under the state’s human rights law. Thus, an employer would be obligated to provide accommodations to such an employee under state law.

While the Pennsylvania medical marijuana law prohibits employers from terminating, refusing to hire, or otherwise discriminating or retaliating against an employee solely because of the employee’s certification to use medical marijuana, the Pennsylvania statute is silent about any employer’s obligation to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.

As another example, in 2017, a Massachusetts court determined that while prohibiting marijuana use at work may still be enforced, employers are not required to permit on-site use of medical marijuana, yet employers may need to provide a “reasonable accommodation” for an employee’s medical marijuana use limited to off-site, off-hours usage.

New statutes are enacted, and new case law is being made frequently as employers grapple with how to handle with such issues.

Exceptions to State Medical Marijuana Laws

But, there are exceptions, even in these states that HAVE legalized marijuana.

Private employers may certainly enact zero-tolerance, drug-free workplace policies. After all, drugs are illegal, and the law recognizes the importance of allowing employers to impose and enforce rules that ensure workplace safety.

Let’s talk about safety for a minute. When employees are responsible for operating heavy-duty machinery or equipment, like miners or forklift operators, employers are generally concerned about their own legal liability, as well as the safety risks to other employees in the workplace and, potentially, other human beings.

After all, you would not want employees under the influence of alcohol at work operating machinery (or operating on a person). Being “under the influence” of marijuana or “impaired” by marijuana use is the same concept, and as you may remember from reading this blog about alcoholism and drug addiction, even if the medical marijuana use is because of a disability, neither requires an employer to relax its performance and conduct standards.

Anyway, what about other safety sensitive positions?

If, say, a physician is in a state that has legalized medical marijuana and the good doctor is certified to use it, can he or she? Not likely.

What about an airline pilot? Or a plumber who’s rummaging around in pipes all day? Not so much.

While employees have certain rights in the various states, the use of medical marijuana may still be prohibited based on the employee’s position or responsibilities, including whether or not that position is regulated by the Department of Transportation.

Further, federal contractors, prime or subs, must maintain their zero-tolerance policies under the Drug-Free Workplace Act.

Employer/HR Takeaways

Employers, HR—what do you do? Is this an intractable minefield?

No, it’s not.

First, find out what your state law says about medical and/or recreational marijuana, though, just FYI, recreational use of marijuana is not protected in the workplace.

Next, corporate Human Resource departments must assess, and reassess, their drug policies relating to medical marijuana.

Then, consider your drug-testing policies, if you have a drug-testing policy. Because legalization is becoming more and more prevalent, more and more employers no longer test for marijuana use.

If one of your employees is a medical marijuana cardholder, what is his or her position? Is it a safety-sensitive position? Does it require the employee to work on federal contracts?

These are all questions to consider and review with employment counsel along with the question of—do you need to initiate the interactive process to determine a reasonable accommodation? We’ll discuss the issue of marijuana and disabilities and maybe some more drug-testing issues in the next post.