November 20th by Nils Wright 0 0As states continue to liberalize marijuana use, employers are left in a bind in terms of enforcing no-drug policies, respecting their employees’ right to privacy and keeping a safe workplace. While a majority of states have medical marijuana laws on their books, only a handful of states require employers to accommodate (to a degree) staff who use medical marijuana. And many states, including California, have established case law stating that employers do not have to accommodate someone who has a medical marijuana prescription. Complicating matters for employers, more states are legalizing recreational marijuana. Since employers have to balance their legal obligations to their employees, they also have to be able to ensure they have a safe workplace that is free of drugs. Here’s a guide to the main issues facing employers:
ADA complianceThe Americans with Disabilities Act prohibits employers from discriminating against employees on the basis of a disability, and the law requires employers to provide a reasonable accommodation to them if needed. The word “reasonable” is there to ensure that the accommodation does not impose any undue hardship on the employer. Often, medical marijuana is prescribed to people with disabilities who are considered protected individuals under the ADA. In many cases, the use of marijuana can be vital in allowing a disabled worker to do their job and also perform major life activities. While the ADA bars discrimination against individuals with disabilities for employment purposes, courts in many states have ruled that medical marijuana use is not a reasonable accommodation. But, in 2008, the California Supreme Court ruled that employers have a right to drug-test and fire patients who test positive for marijuana, regardless of their medical use. It based its decision on the fact that because the state’s Fair Employment and Housing Act does not require employers to accommodate illegal use, an employer can lawfully terminate an employee who uses medical marijuana. More recently, in 2012, the Ninth Circuit similarly held that the ADA does not offer job protection for medical marijuana users because marijuana is an illegal substance under federal law. That said, as medical marijuana becomes more accepted, companies may want to consider revising their policies to include accommodations for use. One way to do this is to create policies that bar marijuana use in the workplace, particularly smoking or vaping, but be more forgiving with use outside of work hours. If you also drug-test, you’ll need to make exceptions as employees can show positive for drug use at work even though they may have used marijuana the day before at home. Your policies should take into account that you have a legitimate interest in ensuring that any medications the employee takes are used in a responsible manner and will not affect job performance. Your company policy could state that a prescription for medical marijuana does not entitle an employee:
- To be impaired at work.
- To compromise his or her safety, or the safety of others.
- To smoke in the workplace.
- To unexcused absences or late arrivals.