Number 46: How To Deal With Employees Using Marijuana
Fifty years ago when Title VII became law and 23 years ago when the Americans with Disabilities Act became law, it would be inconceivable that someone would be blogging about accommodating employees by allowing them to smoke marijuana. Not just because blogs (and personal computing at Title VII’s dawn for that matter) didn’t exist, but also because the notion would have seemed crazy. Marijuana use was illegal everywhere in the United States and people were receiving lengthy jail sentences related to it.
Today, marijuana use is fully legal under state law in Colorado and Washington and the use of marijuana for medical purposes is legal in another 18 states and the District of Columbia. Although state laws differ in scope, generally speaking medical marijuana laws allow individuals to obtain marijuana to treat ailments both serious and routine. At the same time, marijuana use remains illegal under federal law and the Obama Administration opposes the legalization of marijuana.
In the 20 states where marijuana use is now legal under state law in some form, the courts have been faced with the perplexing question of how to read those laws in connection with state or federal laws — like the ADA — which require accommodation of disabled persons in the workplace. Are employers required to accommodate disabled employees by allowing them to use marijuana?
California was the first case to decide the issue. Its 2008 opinion in Ross v. Ragingwire Telecommunications found that the State’s Compassionate Use Act, which legalized marijuana usage for medical purposes, was not intended to disrupt other laws involving the employment relationship. Since then, either the courts or the legislatures in several states — California, Colorado, Michigan, Montana, Nevada, Oregon, and Washington — have found that employers have no duty to accommodate disabled employees by allowing them to use medical marijuana.
However, the state laws legalizing medical marijuana laws in five states — Arizona, Connecticut, Delaware, Maine and Rhode Island — forbid employers from refusing to hire applicants who use medical marijuana or from taking adverse action against them because they have obtained a prescription for marijuana. In Arizona and Delaware, likewise, employers cannot refuse to hire someone based on a positive drug test for marijuana when the test resulted from legal medical marijuana use.
There do appear to be some lines even those states will not cross. In no state is an employer required to accommodate use of marijuana at work, much like employers are free to take action against those who drink at work or violate no smoking policies.
Still; the trend in this country is toward freer use of marijuana and public opinion polls seem to be changing drastically. In 2013, a Gallup poll showed that for the first time, a majority of Americans favored the legalization of marijuana.
Twenty years ago, this blog post about marijuana in the workplace would have been inconceivable. In another twenty years, we too may be asking what were those people thinking back then twenty years ago.