Employers and Medical Cannabis: Likely No Duty to Accommodate

By Macee Utecht, second-year student at the University of Washington School of Law.

Twenty-nine states, the District of Columbia, Guam, and Puerto Rico have passed medical marijuana programs. Generally, medical marijuana laws allow for the legal consumption of cannabis as medical treatment after a physician authorizes use, and most states list various medical conditions that may qualify a patient for medical cannabis cardholder status. With over half of the United States implementing medical cannabis programs, the question of whether medical cannabis may be considered a reasonable accommodation under the Americans with Disabilities Act (ADA) has surfaced.

Modeled after the 1964 Civil Rights Act, Congress passed the Americans with Disabilities Act in 1990 to prohibit discrimination of disabled persons. The ADA serves to guarantee disabled persons equal opportunities to obtain employment, to purchase goods, and to participate in state and local government programs. Further, if a disability creates limitations for an otherwise qualified individual, an employer must consider whether “reasonable accommodations” could help alleviate the limitations. Many states also have laws that supplement the ADA.

Passage of state medical cannabis legislation has created a tension between employers who wish to maintain drug-free workplace policies and those who seek to employ medical cannabis as a reasonable accommodation for their disability under state and federal disability legislation like the ADA. While there have been some favorable decisions for medical marijuana cardholders, a majority of states do not force employers to allow medical marijuana as a reasonable accommodation.

In most states, those who validly consume cannabis for medical treatment may still be lawfully terminated by their employer. Even in a state like California, which initially pioneered medical cannabis legislation, does not require employers to accommodate employees who use medical cannabis. Washington, Oregon, and Colorado also allow employers to terminate without providing reasonable accommodations for medical marijuana use.

On the other hand, some states like Arizona, Delaware, and Minnesota provide protections that prohibit discrimination in hiring, termination, or any other condition of employment based on medical cannabis cardholder status. The Massachusetts Supreme Court recently held that “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” And even in states like Michigan, where employees may be lawfully terminated for medical cannabis use, cardholders may still receive unemployment benefits.

While case law across the nation indicates that most states do not require employers to accommodate medical marijuana use, some employers choose to do so anyway. It may be beneficial for cardholders to begin a dialogue with their employer or potential employer to determine whether appropriate accommodations can be made. Choosing to transfer employees that use medical cannabis outside of positions that present a potential safety risk creates opportunities for accommodation of medical cannabis users- for example, allowing an employee to occupy a position that does not require the operation of heavy machinery may be a reasonable solution.

For now, cardholders should err on the side of caution: lawful use of medical cannabis does not always mean that employers must accommodate that use.

 

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