What Employers Need To Know
About Employees
and Medical Marijuana

By Adam D. Kemper, Esq., & Alejandro Leiva, Esq.

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Next year is shaping up to be a very interesting one: Donald Trump will be the president of the United States and marijuana will be legal (at some level) in many areas around the country.

California, Massachusetts and Nevada recently passed laws to make marijuana legal for recreational purposes. Other states, including Florida, Arkansas and North Dakota, voted “yes” to make marijuana legal for medicinal purposes. While these laws generally provide comprehensive regulatory guidelines for, among other things, the production, use and sale of medical marijuana, most fail to provide guidance to employers as to their obligations to employees who are prescribed medical marijuana.

Pennsylvania is one of only a handful of states that has addressed an employer’s obligations in its marijuana-related legislation. Specifically, Pennsylvania law expressly prohibits employment discrimination against employees who use medical marijuana. Other state regulations are not so developed yet. Because most medical marijuana laws were only recently implemented, there have been only a few lawsuits, which involve employment-related disputes. As a result, this is a developing area of the law and employers need to stay ahead of the curve before they become the “example” of what not to do.

Whether your company currently operates in a state that permits the use of marijuana or it has employees who perform work in such states, it is important for you to understand your company’s legal obligations to employees who use medical marijuana.

Employers should be aware of the following:
Marijuana is still illegal under federal law. While the Americans with Disabilities Act of 1990 (“ADA”) prohibits employers from discriminating against a qualified individual with a disability, the ADA does not protect individuals who use drugs which are unlawful under the Controlled Substances Act. The Controlled Substances Act currently designates marijuana as a Schedule I drug. Thus, although medical marijuana has been, or will be, legalized in virtually every state, its use is still considered illegal under the ADA.

Employers may still be required to offer reasonable accommodations to certain employees who use marijuana to treat a disability. Notwithstanding its current illegality under federal law, an employee’s disclosed use of medical marijuana may still trigger an employer’s obligation to engage in the interactive process with a disabled employee (i.e., informal communications between the employer and employee whereby both parties determine the appropriate reasonable accommodation for the employee’s disability). The reason is because an employer is required to offer accommodations to all disabled employees so long as the accommodation does not result in an undue hardship. Thus, while an employer is not required to accommodate a disabled employee by permitting use of medical marijuana, it must at the very least try to find other feasible accommodations for the employee.

Be aware of states (like New York and Pennsylvania) that have adopted their own laws, which expressly prohibit employment discrimination based on an individual’s use of medical marijuana. In 2014, New York enacted the Compassionate Care Act (the “Act”), which legalizes the use of medical marijuana to treat certain serious health conditions. The Act also deems “Certified Patients” as being “disabled” for purposes of the New York State Human Rights Law (the state law equivalent to the ADA). Thus, New York employers cannot take any adverse employment action against an employee simply because of their medically authorized marijuana use. This does not mean that employees have free rein to use, possess, distribute or be impaired while performing job functions. Employers may terminate an employee (or take other adverse employment actions) against an employee who uses medical marijuana on the job. Thus, any employee who uses medical marijuana during work (or who is impaired by medical marijuana on the job) may still be subject to disciplinary action, up to and including termination of employment.

In light of the foregoing issues surrounding medical marijuana use, here are some best practices for employers to consider:
• Consult with an attorney who is familiar with the latest changes (around the country) to the laws on cannabis use. Staying ahead of the curve can help you avoid a lawsuit.
• Review your drug and alcohol policy to ensure safety for your workers and others, but assess if it is overly restrictive on the use of legally prescribed marijuana. Medical marijuana (like other prescription drugs) must be used in the method and manner prescribed.
• Incorporate applicable anti-discrimination policies into your workplace.
• Engage in the interactive process with all individuals who state that they have a need for medical marijuana for their disability (even if it is illegal under federal law).

Greenspoon Marder is a full-service business law firm that caters to all client legal needs, including labor and employment and cannabis law. Greenspoon Marder is proud to announce the recent opening of its offices in Las Vegas, Denver, New York and San Diego. For more information about any of the information contained in this article, please contact Adam Kemper, Esq., and Alejandro Leiva, Esq., at 954-491-1120 or via email at adam.kemper@gmlaw.com and alex.leiva@gmlaw.com.