The legalization of medical marijuana in states across the country has come with plenty of controversy and conversation, especially in terms of the role of Marijuana in the workplace. Legalized cannabis has presented employers the difficult task of having to reconcile anti-drug policies with certain state statutes authorizing its use for medical purposes.
Adding an additional layer of complexity to the uncertain landscape of legal marijuana is the growing number of states and jurisdictions that have also legalized cannabis for recreational use, beyond just medical purposes. As state cannabis laws continue to spring up, employers with no marijuana policy are having to decide how they navigate off-duty use for both medical and recreational purposes.
A major issue that employers now face is whether they must accommodate an employee’s use of medical marijuana for an illness or disability. Because cannabis continues to be considered an illegal drug under federal law, the Americans with Disabilities Act does not require employers to accommodate an employee’s off-duty use of medical cannabis, even when it is legal under state law.
Even states such as California, Colorado, Michigan, Ohio, and others who have legalized recreational use cannot stand in the federal government’s way. Yet other states, such as Alaska, Arizona, Connecticut, Delaware, and Arkansas protect an employee’s off-duty use of medical cannabis for valid medically related reasons. In those states, a positive drug test will not warrant disciplinary action. Instead, employers must provide concrete evidence of an employee’s influence while on the job.
Many of these states also require that employers reasonably accommodate employees who use cannabis for medical reasons, such as time off or a leave of absence during the time the employee must use cannabis.
Employers enjoy more discretion when it comes to an employee’s off-duty use of recreational cannabis. While many states, such as Alaska, Colorado, Maine, and Nevada, have legalized cannabis for recreational use, only one state (Maine) protects an employee’s off-duty use of it.
Most of these state marijuana laws provide that they do not inhibit an employer’s own ability to enforce its own zero-tolerance drug policy. In this case, employers in those states may continue to discipline or fire employees who test positive for marijuana use, even if those employees used cannabis legally while off-duty.
Because this is a constantly evolving legal situation, U.S. employers must do what they can to keep abreast of whether their drug policies and testing practices comply with the laws of the state(s) in which they operate. Employers in those states that protect any off-duty medical marijuana use should be sure to update their zero-tolerance policies to reflect a willingness to accommodate marijuana use off-duty, especially for medical purposes.
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