Do employers have to accommodate medical marijuana use at work?
Issue:

Your state recently passed a law that allows the medical use of marijuana. You are concerned this means you have to accommodate employees’ marijuana use at work. You also aren’t sure whether your drug policy — which prohibits working while under the influence of controlled substances and prohibits using, possessing, selling, or purchasing controlled substances at work or while on duty — violates state law. What should you do?
Answer:    

At present, no state medical marijuana law requires employers to accommodate marijuana use while at work or on duty. However, some do prohibit employers from discriminating against employees due to their status as a patient qualifying for medical marijuana use or for testing positive for THC (the active ingredient in marijuana) in the blood, so long as the level is not high enough for the employee to be impaired at work. With this in mind, employers are well advised to tailor their drug policies to stay within bounds of applicable law. In medical marijuana states, focus on statutory language and consider whether to include a provision in your policy focusing less on a positive result for THC and more on whether the level of THC is sufficient to impair an employee while on the job.

In drafting drug policies, employers also need to consider applicable federal laws. The use of marijuana, even for medical purposes, violates the federal Controlled Substances Act. Other federal laws may apply as well, including the Occupational Safety and Health Act, which imposes a general duty upon employers to provide a safe work environment. Employers that are covered federal contractors also must comply with the federal Drug Free Workplace Act of 1988.

The applicability of the Americans with Disabilities Act (ADA) to medical marijuana is less clear. In a 2012 case outside the employment context but with implications for employers, James v. the City of Costa Mesa, the Ninth Circuit ruled with respect to Title II of the ADA (concerning discrimination in the provision of public services) that the Act does not protect individuals who claim discrimination based on their medical use of marijuana because such use violates federal law, thus falling within the ADA’s illegal drug exclusion.

In light of the changing legal landscape, every workplace substance abuse policy should be reviewed by an attorney before use.

Source: CCH Corporate Counsel News – Trends and Developments, Marijuana and Work: Overview and Policy Suggestions for Employers, November 19, 2012; James v. the City of Costa Mesa (9thCir 2012) No. 10-55769.
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