The Medical Marijuana Headache – Accommodating Employees’ Use of Medical Marijuana

Employers often deal with a myriad of employee issues related to the implementation and execution of employee polices. Over the past few years, however, one issue appears to give employers headaches more than any other—marijuana. No, I am not referring to the bad headache that (so I have heard) one may get from smoking cheap weed. I am instead referring to the headache employers may experience by trying to understand the continuously evolving laws related to marijuana, and more specifically, laws related to how employers should address accommodation issues for employees who use marijuana to treat a disability. The headache is understandable and perhaps inevitable, as gaining an understanding of the accommodation issue requires employers to have a grasp of federal and state law and knowledge of how courts interpret relevant state law.

Federal Law Considerations

The first step in analyzing accommodations for medical marijuana users requires a review of the Americans with Disabilities Act (“ADA”). The ADA generally requires employers to make reasonable accommodations for qualified workers with disabilities. However, the ADA does not protect current illegal drug use, and since marijuana is illegal under federal law (with no exceptions for medicinal use), employees who use medical marijuana are not currently protected under the ADA.

State Law Considerations

Unlike the accommodation analysis under federal law, state laws vary greatly and can serve as a source of confusion for employers, especially employers who operate in multiple states. For example, Michigan, Ohio, New Jersey and Colorado, among several other states, have passed laws permitting the use of medical marijuana, but those states do not require employers to accommodate an employee’s use of medical marijuana. Courts in others states have, however, interpreted state statutes to require added protection for employees who legally use medical marijuana to treat disabilities.

For example, a court in Massachusetts considered a claim involving an employee who received a job offer for an entry level position and informed the employer during the onboarding process that she utilized medical marijuana to treat a disability—Crohn’s disease. The employer terminated her employment after she failed a drug test, and the employee subsequently brought a lawsuit alleging she could perform the functions of her job with a reasonable accommodation—a waiver of the company’s zero tolerance drug policy. The employer argued, in part, that such an accommodation was per se unreasonable. The court disagreed, however, and held that, under Massachusetts law, the employer was required to engage in the interactive process prior to terminating the employee’s employment and the employer held the burden of proving the requested accommodation would cause an undue hardship to the employer’s business.

A Rhode Island court made a similar ruling. In that case, the employer refused to hire an applicant based on its zero tolerance drug policy after she disclosed her use of medical marijuana. The applicant subsequently filed a lawsuit alleging, in part, that the employer discriminated against her based on her disability in violation of the state’s Civil Rights Act. The employer argued, in part, that its decision not to hire the applicant was based on her use of marijuana and not her disability. The court rejected this argument, noting the employer asked the court to "completely separate the medical condition from the treatment" and the only reason an individual was lawfully permitted to utilize medical marijuana was to treat a disability. The court held that the policy prevented the hiring of individuals suffering from a disability best treated by medical marijuana and the employer violated state law by refusing to hire the employee.

The statutes and case law above demonstrate the confusing nature of the law surrounding marijuana. On one hand, marijuana use is illegal and thus unprotected under federal law, and a state's legalization of medical marijuana does not necessarily mean an employer is required to accommodate an employee for his or her use of medical marijuana. On the other hand, some state court decisions reveal that, despite the fact that federal law prohibits the use of medical marijuana, employers in some states may need to accommodate employee use of medical marijuana to avoid lawsuits under state law. What is an employer to do?

Key Takeaways

There is an obvious conflict between federal and state law with regard to the use of marijuana and also with regard to an employer’s duty to provide accommodations for employees who use medical marijuana. In the same vein, and as noted above, state statutes vary as to whether employees are entitled to accommodations for utilizing marijuana, with some states providing added protections for employees and some not. With these issues in mind, employers should immediately review marijuana laws in the states in which they have employees to determine what, if any, duties the employer has to accommodate medical marijuana users. This may not be an easy task due to the state law variations; however, such a review is necessary as a lack of understanding of state or local laws may create exposure to lawsuits.

Thus far, no law permits employees to be under the influence of marijuana while at work. Employers should continue to enforce zero tolerance drug free workplace policies. However, employers should consider moving away from zero tolerance drug testing policies that detect and prohibit the employment of individuals who use medical marijuana off duty. The more practical approach to an employee’s use of medical marijuana to treat a disability is to engage in the interactive process. In doing so, employers should: analyze the employee’s essential job functions; meet with the employee; request information about the employee’s limitations; and make a determination as to whether the employee’s off duty use of medical marijuana can be reasonably accommodated without an undue hardship to the company. While such a process may not be required in every state, employers should begin making policy changes to keep up with trends in the law, as blanket policies requiring the immediate discipline or discharge of employees who use medical marijuana will soon be outdated, and as evidenced by the decisions above, may lead to legal claims.

Finally, employers should make efforts to stay up to date on legal developments involving medical marijuana, even if they are not currently in a state that permits the use of marijuana. The surge in state legislation regarding the use of marijuana is not a topic that will go away soon, and employers should be proactive in making plans to address possible changes in the law.

For more information, contact Charles E. Bush II or any member of Ice Miller's Labor, Employment and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.