This area of the law is changing rapidly and making it challenging for employers to fix their workplace polices. A year ago, our blog addressed many issued about revising your drug policy for marijuana. Since then, more states permit the use of marijuana for recreational and/or medical purposes. And courts are weighing in on some practical issues for employers when it comes to marijuana and the workplace.
So, with rapidly changing laws and court decisions, what are employers to do? Here are some new developments to alert you to what’s happening now.
Bumping up against federal law
Technically, marijuana remains a controlled substance under federal law (although this may change, as explained later). Despite state-level laws, there are still instances where employers must keep marijuana use out of the workplace:
- Federal contractors and federal grant recipients must comply with the Drug-Free Workplace Act (DFWA). This law bars marijuana use at work, but doesn’t permit employers to bar employees from using it outside the workplace.
- Commercial drivers who subject to U.S. Department of Transportation rules must adhere to those on drug testing and possession.
If an employer is injured on the job, does workers’ compensation have to pay for medical marijuana (assuming it’s legal in the state)? It depends on the state. Florida’s statute, for example, seems to bar reimbursement, but there’s a case now challenging it.
According to a recent New Jersey court decision, there can be reimbursement. The state’s Compassionate Use Act (CUA) can require reimbursement of an injured employee’s medical marijuana prescription costs.
The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for persons with disabilities. Does this include use of marijuana for a condition? It depends on the state. Some states allow for termination based on marijuana use even if there’s a disability involved. Other states give employees a private right of action against employers for failing to accommodate their disability, which includes medical marijuana use.
Recently, a Connecticut court said its state law (which gives that private right of action) doesn’t exempt employees from employer-required drug testing of those with a disability. This means an employer may terminate a worker with a disability who fails a drug test, even though the person is using medical marijuana. Huh?
Use versus impairment?
Employers should check state law on whether they can bar employees from using marijuana in the workplace and whether they can terminate employment for impairment (i.e., failing a drug test). Virginia now has a law that bars employers from discriminating against employees who use cannabis oil if they have valid written certification issued by a practitioner to treat symptoms of certain conditions. But employers may still prohibit impairment caused by cannabis oil and can prohibit possession during work hours. A narrow channel for employers to navigate?
What’s the bottom line?
It’s essential that employers follow developments in their state on the treatment of marijuana in the workplace. If they have questions, talk with an employment law attorney. And watch for Congressional action, which may remove marijuana from the list of controlled substances. The Common Sense Cannabis Reform for Veterans, Small Businesses, and Medical Professionals Act would do just this (and more), which would be a game changer!