Many people wonder if the Americans with Disabilities act protects them as medical marijuana users. This fact-filled article clears the haze around this contentious issue. The ADA protects disabled workers from excessive workplace discrimination. It also requires employers to provide the “reasonable accommodations” necessary for disabled employees to continue contributing productively to the company’s mission and goals.
However, it makes you ponder if it is required for employers to tolerate an employee’s marijuana use, when that use is “medical” in nature. With increasing numbers of states permitting the use of medical marijuana, companies throughout the country are asking this question.
Here is what employers need to know:
Understanding the ADA on drug use
The Americans with Disabilities Act (ADA) states that a person who is currently using illegal drugs does not qualify as “disabled” under the law and, therefore, employers do not have to provide reasonable accommodations for the illegal drug use. However, the ADA also states that drugs “taken under supervision by a licensed health care professional” are not a form of “illegal drug use.”
So when an employee is licensed to use medical marijuana, does the ADA protect them? Currently, there is no clear legal answer from the federal government. Marijuana use of all types is currently prohibited by the federal Controlled Substances Act, so it would appear that marijuana is still classified as an “illegal drug” as far as federal laws (including the ADA) are concerned. This was also the conclusion made by the Colorado Supreme Court in a recent case.
The regulations that apply to certain jobs also may affect marijuana use. For instance, commercial truck and bus drivers are generally subject to the regulations set forth by the U.S. Department of Transportation (DOT), which has a zero-tolerance policy for drug use on the job. Companies that employ drivers who are subject to DOT regulations may enact a similar zero-tolerance policy in order to stay compliant with DOT rules.
What the states have to say
Currently, the use of medical marijuana has been decriminalized in 23 states and the District of Columbia. If you operate business offices in one or more of these states, you will need to examine your state’s or city’s medical marijuana rules as well as gain an understanding of the federal law.
Why? Because several states have included accommodation clauses in their statewide medical marijuana law.
In other words, even though the Americans with Disabilities Act does not protect employees from adverse actions based on their marijuana use, some state medical marijuana laws do. Employers who seek to fire the employee based on their medical marijuana use may find themselves in violation of the state’s accommodation law, even if they are not violating the ADA.
When employment policies need attention
When drafting or updating your employment policy, keep these tips in mind:
Know the rules. Federal law still prohibits the use of marijuana, but several states and some cities have created their own rules based on state or local laws. Understand the rules that apply to each business location before updating drug policies. Talk to a lawyer if you have specific questions.
Make safety a company priority. Regardless of the rules in your area, all fifty states will allow an employer to terminate an employee if the employee’s marijuana use is jeopardizing the employee’s safety or the safety of others.
Maintain a drugs-free workplace. Employers are generally not required to permit the use of marijuana or other drugs on-site. A smoke-free or drug-free workplace also promotes the health of your staff and protects those sensitive to the effects of secondhand smoke.
The staffing partner can also help by screening candidates and checking their criminal records for a history of drug use. When you engage temporary or contract employees, your staffing firm also serves as the employer of record. If your company requires drug testing, discuss with the staffing company in advance. While a workplace drug policy is essential, your staffing partner can help you find the right people for each job.
Editor’s Note: In New Jersey, legislation was introduced in December 2015 that establishes employee protections from adverse employment actions for registered patients using medical marijuana pursuant to the “New Jersey Compassionate Use Medical Marijuana Act.” New Jersey employers would be prohibited from firing people because they participate in the state medical marijuana program unless they can demonstrate that these employees are impaired and unable to do their jobs. The legislation does not permit patients to use marijuana while they are working.
Ted Kissel is President – CEO of UNITEMP Temporary Personnel. Headquartered in New Jersey UNITEMP was founded in 1969 by Ted’s father. UNITEMP is a staffing company dedicated to providing employers with experienced and tested administrative, technical and professional temporary and contract staff. Ted began managing UNITEMP’s Meadowlands office in 1989 and became President in 1995. The company is independently owned (by Ted) and operated and is a longtime member of the Meadowlands Regional Chamber of Commerce.
Ted is a Certified Staffing Professional CPC and Technical Services Certified TSC through the American Staffing Association. Ted can be reached @ firstname.lastname@example.org , Ph. 201-678-3212 and www.unitemp.net