Medical Marijuana

Can you have a no-drug workplace policy if you say “yes” to medical marijuana?

May 13, 2019

The legal status of marijuana is constantly changing, and that raises a huge question in the workplace: Is medical marijuana use protected under disability discrimination laws?

Federal law prohibits it. More and more state laws allow it. And then there is the question of how courts interpret the laws.

If medical marijuana is legal in your state, then your management and HR department are probably wondering how you can have a truly drug-free work environment while remaining compliant with current law.

Is medical marijuana use protected under the ADA?
Currently, no. The ADA does not protect “an individual currently engaging in the illegal use of drugs” and excludes that person from its definition of an “individual with a disability.”

But legalization proponents are actively trying to make medical marijuana use protected under ADA regulations. These actions are starting at the state level with litigation and moving towards a change to federal laws. Legislation is already in the federal House and Senate that would remove medical marijuana from the Schedule I substance list.

How do state laws enter into the equation?
Some states have laws that contain explicit anti-discrimination provisions that protect employees who are medical marijuana cardholders.

For example, Minnesota requires that a certified medical marijuana patient must be deemed as having a “disability” under the state’s human rights law.

Of course, there are exceptions to state laws.
Private employers are within their rights to create and enact zero-tolerance, drug-free workplace policies. (Federal contractors are required to maintain zero-tolerance policies under the Drug-Free Workplace Act.) The law recognizes the importance of allowing employers to impose and enforce rules that ensure workplace safety.

So, even if medical marijuana is being used because of a disability—and state law requires the employer to allow it—the employer does not have to relax performance or conduct standards if that would endanger the safety of other employees or customers.

Does the Family Medical Leave Act affect medical marijuana use?
The FMLA requires that covered employers provide leave for certain employees with serious health conditions. The issue between FMLA leave and medical marijuana may be employer drug testing after an employee returns to work. If that employee uses medical marijuana as part of a prescribed treatment while on FMLA leave, that use may result in a positive drug test when the employee returns to work. Can an employer terminate an employee who takes medical marijuana while on FMLA leave without fear of violating the act?

What are management and HR supposed to do?
Employers can start by finding out what state law says about medical marijuana use in the workplace. Next, assess your drug policies, specifically the part relating to medical marijuana.

Then, consider drug-testing policies. Marijuana residue is stored in human fat cells, so it’s always there. That means test results don’t give a true picture of when the drug was used.

Now, assess which of your employees is a medical marijuana cardholder and what his or her position requires. Does that pose a safety risk? Does the employee work on federal contracts?

Without a marijuana in the workplace policy, an employer risks drug test that results in termination being reversed by a court. That can cost the employer back wages, punitive awards and attorney fees.

When society changes, so do laws…and workplaces. 
Many business owners and HR professionals continue to grapple with questions raised by new legislation protecting employees with disabilities as well as the use of marijuana.

For states where employee protection laws have been put in place, it’s still possible to restrict marijuana use—but care needs to be taken in crafting and enforcing a policy. In most of these states, laws have yet to be challenged and defined through the courts. Until we have more decisions in more states, many facets of drug use in the workplace are still open to interpretation.

What are your next steps?
The best way to create a drug-free policy that helps you be compliant with both federal and state law is to have a clear picture of your entire situation—legal, safety, employee needs, and corporate culture. Your Marsh & McLennan Agency representative can closely examine employment law and employee communication to help you make your next move the right move.