Tip of the Month – Be Careful Discriminating Against Medical Marijuana Users

Written by Robert G. Brody on November 25, 2011

There are sixteen states which allow legal medical marijuana use.  However, most of them do not have laws which protect employees from discrimination based on their drug use.  Employers who perform drug tests on employees now have to grapple with a problem – do you fire someone who fails a drug test, even if you know they legally use medical marijuana?  Do you have to make a reasonable accommodation for a medical marijuana user under the Americans with Disabilities Act (ADA)?  Here are some points to consider if you are in one of those sixteen states.

Illegal Drugs under the ADA

Under the ADA, marijuana is an illegal drug.  Courts have generally found that medical marijuana use alone is not protected by the ADA.  However, some scholars believe that there is a carve-out in the ADA for medical marijuana use.  The exception they point to is for a drug which is taken “under supervision of a licensed healthcare professional.”  This particular issue has yet to be litigated.

Reasonable Accommodations under the ADA

If you are considering providing a medical marijuana user with a reasonable accommodation, what would it be?

  • Perhaps you provide them with a week’s warning that you will be performing a (not so) random drug test on employees.  This will allow the employee to stop using the medical marijuana for a few days to allow them to test negative.  This seems impractical and possibly hard for the employee to comply since the drug use in medically necessary.
  • Another idea involves exempting the employee from the ‘byproducts’ section of a drug test.  Marijuana’s byproduct is called THC, and that is what shows up on a positive drug test for marijuana users.  Most other drugs do not show up as ‘byproducts’ on a drug test, so the employee would not be exempt from other illegal drug use.
  • In addition, you could have a more sophisticated drug test which measures the levels of THC, telling you whether the employee smoked marijuana during work time, or off work time.

Drug-Free Workplace Policies

If you are a drug-free workplace, you do have the right to fire employees for their drug use in most states, regardless of their status as a legal medical marijuana user.

While you may not be legally required to make accommodations or ignore an employee’s medical marijuana use, it may be a best practice to take their usage into consideration and attempt to accommodate them to the best of your ability.  Since these issues have not seen much litigation, you do not want to become the test case.  Thus, a reasonable approach is important.  Hopefully states will issue more guidance in the near future to aid employers.

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More