Some Employers Accommodate Medical Marijuana Users

Accommodations aren’t required under federal or state laws, but some state laws permit them

By Allen Smith, J.D. Apr 18, 2017
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Most states don't require employers to accommodate workers' use of medical marijuana—even in those states that have legalized pot for medicinal purposes—but some employers are accommodating workers anyway, according to Nancy Delogu, an attorney with Littler in Washington, D.C.

Employers can offer medical marijuana users a range of accommodations, such as a leave of absence or modified job duties, she said. Delogu noted that in some states there is the legal option of letting employees use marijuana products that have low tetrahydrocannabinol (THC), the psychoactive ingredient that can impair someone's judgment.

Using marijuana is still illegal under federal law, but 28 states have passed medical marijuana laws and eight, in addition to the District of Columbia, have legalized recreational use for adults ages 21 and older. However, "Most states do not offer medical marijuana users any sort of employment law protection," she said.

If employers are located in a state where medical marijuana is illegal, "the employer should treat its use as such," said Stanley Jutkowitz, an attorney with Seyfarth Shaw in Washington, D.C., who heads the firm's Marijuana Law Working Group.

But in states where medical marijuana is legal, an employer may choose to accommodate a worker who uses pot for medical reasons. If it does, "Many states regulate the form of medical marijuana that may be consumed and generally prohibit smoking, so an employer would probably not need a smoking room," he said.

Transfer out of Safety-Sensitive Positions

Transferring an employee away from safety-sensitive tasks, such as driving, is one possible accommodation, noted Patti Perez, an attorney with Ogletree Deakins in San Diego. The employer should also consider whether the employee can fully concentrate on his or her work, whether the marijuana might affect other cognitive skills, and whether it makes the employee too sleepy to be productive, she added.

Delogu said one employer was sued for wrongful death and negligent retention after its employee struck and killed a pedestrian while driving to a meeting. The employer knew about the employee's use of medical marijuana, which led to a heightened claim for damages. "Employers don't want to be placed in that position," she said.

"Some employers have safety-sensitive workforces and federal contracts that may require them to maintain drug-free workplaces," she added.

But as a practical matter, "Many of the employers I work with are approaching requests for accommodation very much on a case-by-case basis," Delogu said.

Employers may ask for documentation that employees are using marijuana for medical reasons. Most ask for a copy of the marijuana registry card that states give to individuals so they can buy and possess marijuana products. However, only one state—Arizona—provides a reliable verification process so that the employer can tell whether the card is genuine, she added. "As a result, it's not always easy for employers to be sure if someone has been approved," Delogu said.

ADA Issues

Medical marijuana has been prescribed to cancer patients, patients with chronic pain, and people with epilepsy or glaucoma, Perez noted.

It also has been prescribed for post-traumatic stress disorder and to enhance appetite for those who are HIV-positive, among other conditions, said Jonathan Mook, an attorney with DiMuroGinsberg PC in Alexandria, Va.

Such conditions may require accommodations under the Americans with Disabilities Act (ADA). But an employer can still take disciplinary action against someone using pot for these reasons.

If an employer disciplines a worker based on his or her marijuana use, regardless of whether it's for medical or recreational reasons, the worker isn't protected by the ADA because using pot is still illegal under federal law, said David Fram, director of ADA and equal employment opportunity services with the National Employment Law Institute, headquartered in Golden, Colo.

The employer should be careful, though, how it goes about that discipline. The employer should first base that discipline on the drug use itself without mentioning the condition for which it's being used, because that could bring the ADA into play. Instead, the employer may want to consider accommodations only after the worker indicates that marijuana was used for medical reasons.

In addition, some employers' attitudes toward recreational and medical marijuana use is becoming more relaxed at the applicant stage. "Many employers are considering adjusting their drug-free workplace policies to recognize that many otherwise qualified job applicants may test [positive] for marijuana use and [that] to disqualify all those applicants would severely reduce the available job pool of qualified individuals," Mook said.

[SHRM members-only toolkit: Screening by Means of Pre-employment Testing]

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