Since California first legalized medical marijuana in 1996, more than half of US states have made similar allowances for medical marijuana use. However, marijuana use remains illegal under federal law, which presents questions for employers and employees regarding medical marijuana usage at work and off-duty. One particular question is whether the use of marijuana, including medical marijuana while having a marijuana card, is protected in the workplace by the ADA?
Under Title I of the Americans with Disabilities Act (ADA) and as enforced by the Equal Employment Opportunity Commission (EEOC), a reasonable accommodation is an adjustment to a job, workplace, or process that enables someone with a disability that limits their major life activities to have an equal opportunity not only to get a job but also to perform their job as effectively as someone without a disability. The ADA requires reasonable accommodations according to three (3) main criteria:
- Equal opportunity in the application and hiring process.
- Equal enablement to perform the core duties of their job.
- Equal benefits and privileges of employment.
The ADA does not require specific policies or processes, instead of requiring employers to make reasonable accommodations requested by employees. Examples of reasonable accommodations for people with disabilities include:
- Providing large print and audio versions of application and training documents so that people with vision and hearing impairments can access them.
- Holding interviews in locations that are accessible to people with impaired mobility.
- Adjusting work scheduling to accommodate medical treatments.
- Providing time off to receive medical treatments.
There is no specific formal process for a reasonable accommodation request. Employees can make a request in plain English, meaning that any indication that they need a change to their workplace or process because of a medical condition can be considered a request for reasonable accommodation. Employees do not need to make a written request for a reasonable accommodation, although employers can provide forms and processes for employees to follow if they wish. All reasonable accommodation requests must receive a response, even if only to direct them to the appropriate person to handle it.
Employers cannot discriminate or engage in retaliation against job applicants or employees in the opportunities for advancement they provide based on reasonable accommodation requests.
When an employee makes such a request, the employer must clarify their needs where necessary to ensure that the accommodation they provide will be effective. This can include:
- Asking questions about the nature of their medical condition or disability to better understand their needs.
- Listening to suggestions for reasonable accommodations from the employee.
- Researching possible accommodations for conditions and disabilities that the employer is not familiar with.
Employers can ask an employee if they need a reasonable accommodation for a known disability without first being prompted by the employee if it is reasonable to believe that they might. For example, an employer may ask a deaf employee on a business trip about any accommodations they might need.
United States federal law, including the federal Controlled Substances Act, and also state law in many cases, does not affirm the right to use medical marijuana at work against company policy as marijuana for any use is an illegal substance. In those situations, marijuana use, including when qualified individuals have marijuana cards, is still considered illegal drug use.
Some states, however, such as Pennsylvania and West Virginia, only allow employers to discipline people for marijuana for medicinal use if it results in their performance at work dropping below the accepted standard for their role.
Additionally, some states prohibit discrimination against medical cannabis users, including those with a medical marijuana card, by employers based solely on their status as a registered medical marijuana cardholder. In five (5) of those states, medical marijuana users cannot be disciplined or terminated due to failing a drug test for marijuana.
The federal Americans with Disabilities Act and Rehabilitation Act both exclude people illegally using drugs from coverage. Although several jurisdictions have legalized medical or recreational marijuana use, none require employers to permit the use of marijuana, including medical use, at work or on work time. Most also allow employers to take disciplinary action against someone who is impaired by marijuana at work, even if it was used legally while off-duty. In determining if an employee is impaired due to marijuana, employers are usually permitted to have an employee who appears to be impaired take and show a positive drug test.
However, this is not as clear as it sounds. Cannabis terpenes effects are very varied, and not all of them produce an intoxicating effect. As a result, people using medical marijuana products that do not result in any impairment may be able to claim disability discrimination if they are punished for doing so. This is a complex legal area, so it is wise to talk to an experienced law attorney before taking action.
Some jurisdictions have ruled that an employee’s off-duty medical marijuana use is protected by medical marijuana statutes, as well as state laws prohibiting disability discrimination. These allow employees to claim disability discrimination if their employer takes an adverse action based on their legal, off-duty use of medical marijuana.
There are limits to these accommodations where they interact with federal law. Employers that receive federal grants, contracts, subsidies, or benefits, are required to prohibit the use and distribution of controlled substances like marijuana at work.
In many states, this situation is progressing in a positive direction for medical marijuana users. For example, Arizona recently struck down a statute prohibiting marijuana possession on college campuses, as it conflicted with state medical marijuana law. Protections against discrimination are unlikely to require employers to permit marijuana use in safety-sensitive roles or where drug testing is required to maintain federal commitments, for example, where employers are required to drug test certain categories of employees such as vehicle drivers, dangerous machine operators, and medical professionals.