Have a Smoke?

 MEDICAL MARIJUANA 02Get to know medical marijuana laws.
By Lisa McGlynn

Confused about medical marijuana laws? You are not alone. Depending on where your manufacturing or warehouse business is located, marijuana may be completely illegal, legal for medical purposes only, or legal for both medical and recreation purposes. Oh, but it is still illegal under federal law. Unless that changes, which it probably will.

Know The Law

Yes, the state of the law is confusing. What this means for companies is that you should stay up the date on the laws in any state where you operate. California became the first state to legalize medical marijuana more than twenty years ago. Since then, twenty-eight additional states, plus the District of Columbia, joined its ranks by passing laws legalizing marijuana for medical use. Eight states have now also legalized recreational marijuana use. Realistically, these numbers will continue to increase in the years ahead.

Further, some states specifically provide employment related legal protection for marijuana users. For instance, in Pennsylvania employers are not allowed to discriminate against employees based upon the fact that they have been certified to use medical marijuana, just as manufacturers are prohibited from discriminating against employees based upon their age, sex or race. In other states, such as Florida, there are no such anti-discrimination provisions. In fact, in Florida and elsewhere, the medical marijuana laws provide specific carve outs stating that employers are still free to implement and enforce drug-free workplace programs and that they do not need to accommodate marijuana use in the workplace or allow an employee to work under the influence of marijuana.

Simply put, what companies may legally do on this issue depends largely on state law – and the laws vary on some very important provisions. Further, as society becomes more accepting of marijuana use, the laws have trended toward becoming more accepting as well. Therefore, it is likely that more states will pass marijuana laws in the future, and existing laws may become more permissive towards marijuana users.

What Do The Courts Say?

In addition to the laws themselves, companies should have their ear to the ground for court decisions interpreting these fairly new laws – especially as to how these laws impact employers.

Until recently, the general advice was that employers did not have to accommodate medical marijuana use by employees, regardless of whether the employees had a disability that would normally trigger an accommodation under the Americans with Disability Act. The general basis for this position has been that marijuana continues to be classified as a Schedule I of the Controlled Substances Act. In other words, it is still illegal under federal law. Accordingly, employers have been arguing - with some success - that it would not be a "reasonable" accommodation to allow someone to work under the influence of an illegal drug. However, a few recent court decisions out of Massachusetts and Connecticut have indicated that some jurisdictions might expect businesses to engage in the interactive process with employees and possibly even require employers to allow medical marijuana usage. These court decisions are definitely causing alarm amongst manufacturing companies.

What About Drivers?

Fortunately, for truck drivers, the issue becomes simplified. There are specific regulations from the Department of Transportation prohibiting drivers from operating vehicles while under the influence of certain substances. Likewise, for employees who operate heavy machinery, or otherwise have safety sensitive positions, manufacturers are warehouse operators have a strong argument that safety concerns trump a need to accommodate marijuana use. However, for positions that don't have safety issues, such as desk employees, companies may find this issue is not so clear-cut.

An Uncertain Future

Going forward, companies should be sure to stay on top of any legal developments on this issue in any jurisdiction where they operate. Likewise, having a clear company policy addressing medical marijuana usage is important to communicate expectations to employees and to ensure that your preferences on this issue are being enforced consistently. If you do have an employee or potential employee who requests an accommodation to use medical marijuana, consider your options before deciding. Certainly, if the person drives a truck or operates heavy machinery, an accommodation may simply not be possible. However, for other positions, you may want to inquire whether a different prescription would provide the same benefits that marijuana provides. Finally, you may consider granting the accommodation. As the law continues to evolve on this issue, you may find your own policies need to evolve as well.

Lisa A. McGlynn is an attorney in the Tampa office of Fisher Phillips, representing employers in all areas of labor and employment law. She can be reached at 813-769-7518. 

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