As of January 2020, marijuana is completely legal – for both medical or recreational purposes – in 11 states and the District of Columbia. Another 28 states have legalized medical marijuana or made cannabidiol (CBD) oil easily accessible, with 11 of those states decriminalizing marijuana use outside of the medical scope. Three (3) more states have chosen not to legalize marijuana for any purpose, but simply to decriminalize it in some form. In total, only eight (8) states remain that have not legalized or decriminalized marijuana in some form, but even some of those states have provisions regarding limited CBD possession and use for treatment of specific conditions. The one remaining constant in marijuana regulation is that federal law still classifies marijuana as a Schedule I drug under the Controlled Substances Act.
How does this lack of uniformity in marijuana regulation impact employment decisions? The Americans with Disabilities Act (ADA) prohibits discrimination in employment against those with qualifying disabilities, and requires reasonable accommodations for those employees. However, the ADA specifically provides that “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” The ADA defines “drug” and “illegal use of drugs” pursuant to the Controlled Substances Act. The ADA also allows employers to prohibit the illegal use of drugs at work, require that employees not be engaging in the illegal use of drugs, require compliance with the Drug Free Workplace Act, and hold employees who engage in illegal use of drugs to the same qualification and job performance standards as other employees notwithstanding any performance or behavior attributable to the drug use.
While this may sound relatively clear-cut, the conflicts between this federal standard and the state laws permitting marijuana use are still relatively new, and some states have seen an increase in employee-friendly judgments. First, there is no explicitly defined time frame for what qualifies as “currently engaging” in illegal drug use. A conflict may also arise if someone takes approved leave under the Family and Medical Leave Act (FMLA) and then returns with a drug test positive for marijuana, something that could have been legally prescribed under state law. Next, there is the concern for what level of proof an employer needs before appropriately disciplining an employee for illegal drug use or being under the influence of an illegal drugs at a workplace.
Other issues that have arisen include ensuring a company drug policy which is effective in promoting productivity and safety in the workplace, while not overly broad so as to violate the ADA or applicable state laws, and enforcing policies in a balanced manner to prevent disparate treatment claims.
As the law in this field continues to develop and supporters of marijuana usage encourage a change in federal regulation, employers may be concerned about their policies and procedures when dealing with employees or applicants who use medical marijuana. Margolis Edelstein’s expertise can aid in counseling companies regarding the legality of their policies and making the best decisions to prevent liability exposure.