Bass, Berry & Sims attorney Dustin Carlton authored an article for HR Dive providing insight on where things stand legally related to medical marijuana in the workplace. Since 1970, marijuana has been listed as an illegal Schedule I drug under federal law. However, nine states and the District of Columbia have implemented measures for legalizing marijuana for both recreational and medicinal use, and 30 states have legalized marijuana use for strictly medicinal purposes.
With new state laws permitting marijuana use, some employers have expressed concern about accommodating the use of medical marijuana use with disability discrimination laws. The Americans with Disability Act (ADA) states that a qualified disabled individual cannot be currently engaging in illegal drug use, which includes marijuana. Because of this, courts have generally found that employers are not required to accommodate the use of medical marijuana under the ADA or state statutes modeled after the ADA.
However, some states have enacted laws which may require employers to provide an accommodation that would not impose an undue burden on the employer or otherwise pose a direct threat to the health and safety of other individuals. Courts have also begun to recognize an employer's duty to accommodate under such state laws, such as in Burbuto v. Advantage Sales & Marketing, LLC and Callaghan v. Darlington Fabrics Co.
HR professionals should therefore be extra careful when evaluating whether they have any obligations to accommodate medical marijuana use, particularly in light of rapid cultural changes. "Although medicinal marijuana use remains illegal under federal law and employers are not required to provide an accommodation under the ADA, employers with jurisdictions where medicinal marijuana is legal under state law should consider revising their company policies and practices to contemplate accommodations for medical marijuana use."
The full article, "Medical Marijuana in the Workplace: Where Do Things Stand?," was published by HR Dive on February 20, 2018, and is available online.