Advice for Employers in States Where Medical Marijuana is Legal– Relax!

Illinois recently became the 20th state to legalize the use of medical marijuana.

Starting Jan. 1, 2014, licensed doctors will be allowed to prescribe marijuana to patients who have at least one of more than 30 medical conditions listed in the legislation. The doctor and patient must have an existing and ongoing relationship. Qualified patients must apply for a card from the Illinois Department of Public Health, which will allow them to get no more than 2.5 ounces of marijuana every two weeks.

Our advice for employers, workers’ compensation risk managers and adjusters in Illinois – and in other states where medical marijuana is legal – is to relax and understand handling of such issues follows similar protocols for all strong prescription drugs, illegal drugs or alcohol. If you have and/or want an alcohol and drug-free workplace, state legislation doesn’t impact that goal in any way.

If you don’t already have one, get your hands on a solid written policy for drug and alcohol-free workplace. (Our firm, Keefe, Campbell, Biery & Associates, is happy to share ours.)

Conflicting laws

Marijuana possession and use remains illegal under the federal Controlled Substances Act. However, federal enforcement of the act is curtailed in states such as Illinois where medical marijuana is now sanctioned.

Many states, including Colorado, Hawaii, New Mexico and Washington, D.C., remain silent on workplace impacts. By comparison, laws in Illinois, Washington, Montana, Oregon, California and Massachusetts make it clear that employers may prohibit use or possession of marijuana in the workplace, but otherwise are silent on an employer’s rights and obligations toward medical marijuana users. Laws in states including Arizona, Connecticut, Delaware, Maine, Michigan and Rhode Island contain provisions explicitly addressing workplace impacts.

Employers in Illinois are advised to pay particular attention to provisions in Section 50 of the new law, which deals with employment and employer liability.

Some FAQs

Q: Can an employer prohibit marijuana use in the workplace?

A: Yes. Except in Connecticut and Hawaii, employers may prohibit employees from even carrying or possessing marijuana in the workplace, regardless of whether the employee may lawfully possess the drug outside the workplace.

Q: Can an employer prohibit employees from working while under the influence of marijuana?

A: Employers in every state may lawfully prohibit employees from working while under the influence of marijuana and may discipline employees who violate such prohibitions. In some states, however, “under the influence” is sometimes more narrowly construed for marijuana use than it is for some controlled substances.

Q: Can an employer refuse to hire an otherwise qualified applicant who tests positive for medical marijuana use in a pre-placement drug test?

A: In general, we recommend that employers take the same position on this as they do to avoid claims of discrimination. In most states, employers may lawfully refuse to hire an applicant who tests positive for marijuana. Some states prohibit employers from refusing to hire on the basis of a positive drug test for marijuana components or metabolites, except where the employer would lose a federal license or revenue by hiring a marijuana user. Some states prohibit employers from refusing to hire an otherwise qualified applicant based upon his/her status as a registered medicinal marijuana cardholder.

Q: Can employers drug test employees and take disciplinary action against an employee who tests positive for marijuana?

A: State laws permitting medicinal or recreational marijuana do not prevent employers from drug testing employees to the extent otherwise permitted by applicable law. Some state laws restrict employers’ ability to drug test employees under certain circumstances (e.g., random testing is sometimes impermissible).

Q: Can an applicant or employee with a marijuana prescription claim disability status and seek accommodation under the Americans with Disabilities Act?

A: Because medical marijuana remains illegal under federal law, its use is not clearly protected by the Americans with Disabilities Act (ADA). Accordingly, marijuana use need not be accommodated under the ADA. However, the underlying condition may still be a covered disability under state law.

Q: How should employers handle violations of drug-free workplace policies?

A: The Drug-Free Workplace Act (DFWA) requires certain federal contractors and all federal grantees to provide a drug-free workplace as a condition of receiving a contract or grant from a federal agency. State laws do not excuse companies subject to the DFWA from compliance.

Substance abuse is estimated to cost the United States $600 billion annually. Employers carry a large burden of these lost productivity and health-related costs. To learn more, watch UL’s recorded webinar on employee drug testing.