Marijuana legalization can have a direct and lasting impact on employers; particularly, those with drug-free workplace policies. Employers can be placed in a difficult position of trying to enforce these policies, while avoiding disability discrimination lawsuits by employees who use medical marijuana outside of the workplace. Even though marijuana is still illegal under federal law, many states have adopted laws that permit medical marijuana consumption and protect patients from discrimination in employment based on their status as medical marijuana users.
To illustrate, the New Jersey Compassionate Use Medical Marijuana Act, the Compassionate Care Act of New York, and Connecticut’s Act Concerning the Palliative Use of Marijuana all allow certified primary care physicians to prescribe medical marijuana to qualified individuals for the treatment of certain medical conditions. These laws vary, however, with respect to an employer’s obligation to accommodate medical marijuana users in the workplace, including an employer’s ability to terminate an employee who has failed a drug test due to cannabis consumption.
Currently, New Jersey does not require employers to accommodate a qualified patient’s use of medical marijuana in the workplace; although pending legislation (Bill A1838) could extend protections to employees by precluding adverse actions against individuals based on their status as a medical marijuana “cardholder”, or based on a positive drug test for marijuana metabolites. Employees have also argued that their medical use of marijuana should be protected under New Jersey’s anti-discrimination law, but New Jersey state courts have not yet issued a definitive ruling on that issue. In Connecticut, it is unlawful for an employer to refuse to hire, terminate, penalize or threaten an employee solely because of that employee’s status as a qualified medical marijuana patient. In New York, the law states that employees and applicants who are registered medical marijuana users are considered to be disabled under the law. Although this law does not specifically require employers to accommodate medical marijuana users, by qualifying such employees as per se “disabled”, these individuals will have a stronger standing to sue in the event that they request an accommodation related to their status as a cannabis user and the employer unreasonably denies that request.
As previously discussed by the Health Law Gurus, these types of medical marijuana laws have left many employers puzzled about whether they may continue to enforce zero tolerance drug policies.
Fortunately for employers, these laws do not guarantee employees the right to “light up” at work, nor do they protect employees who are impaired from marijuana while on duty. These laws also do not permit federal employees, or those employed by federal contractors to consume medical marijuana, as the drug remains illegal under federal law (and therefore not protected by the Americans with Disabilities Act).
In addition, not all employees who suffer from a medical illness qualify for medical marijuana. The New York Compassionate Care Act limits prescriptions to those who are diagnosed with certain qualified medical conditions, including: cancer, positive status HIV or AIDS, amyotrophic lateral sclerosis (“ALS”), Parkinson’s disease, multiple sclerosis (“MS”), epilepsy, post-traumatic stress disorder and rheumatoid arthritis. Other states have similar statutes that codify and limit the types of disabilities that qualify for legal medical marijuana use.
These new laws beg the question: how should an employer respond when an employee who uses medical marijuana at home fails a drug test, or requests an accommodation for their medical marijuana use outside of the workplace? An employer should first confirm that the employee has a legal prescription for marijuana by asking the employee for documentation of the prescription. In states like New Jersey, where patients are required to carry a Medicinal Marijuana Program (“MMP”) card at all times, employers can request a copy of the employee’s identification card to confirm legal use.
Depending on the circumstances, certified medical marijuana “cardholders” are not excused from following the employer’s drug-free workplace policy. For example, employers need not accommodate medical marijuana use that endangers anyone else’s health or well-being or that occurs in moving vehicles, workplaces, public places, or the presence of minors. However, off-duty medical use sometimes requires more careful consideration. In states such as Massachusetts, employers need to determine whether the employee’s off-duty medical use can be accommodated without causing a hardship on company operations, or risks to employee health and safety. In these situations, determining whether an employee is impaired at work is a key consideration. Because drug tests typically measure past marijuana use, not current impairment, this can be a very fact-sensitive issue.
Employers who operate businesses in these “green” states can take the following steps to ensure that they maintain a safe working environment with regards to employee medical marijuana use, while reducing the risk of costly legal claims:
- Closely review their current drug testing policies to the extent that they test for marijuana, and determine whether state law requires exceptions to testing policies as a reasonable accommodation;
- Train managers and human resources employees on how to handle reasonable accommodation requests by disabled employees who are certified medical marijuana users;
- Review policies regarding illegal drugs and disabilities to ensure that each complies with your state’s current medical marijuana laws; and
- Ensure that managers and human resources employees are properly trained on how to determine (and document) employee impairment when an employer suspects that drug use (legal or otherwise) is causing workplace issues.
Employers in medical marijuana states should consult experienced employment law counsel before refusing to hire, terminating, or changing any terms or conditions of an employee’s job because of off-duty medical marijuana use.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or firstname.lastname@example.org