Miles & Stockbridge: Where States Stand on Medical Marijuana in the Workplace

A federal judge in Vermont last month ruled a plaintiff’s medical marijuana use was not protected by the Americans with Disabilities Act. In Skoric v. Marble Valley Regional Transit District et al., the plaintiff was fired by his employer for failing a random drug test by testing positive for marijuana despite having a valid, state-issued medical marijuana card and being prescribed medical marijuana to treat his chronic pain and depression.

In granting the motion to dismiss, the court considered whether the plaintiff was a qualified individual within the meaning of the ADA. Under the ADA, “qualified individual” means “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.” However, the ADA also expressly states that “a qualified individual with a disability shall not include any employee . . . who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”

The plaintiff argued that because he held a medical marijuana card, he was using marijuana under the supervision of a doctor and thus protected by the supervised-use exception of the ADA, which allows for use of illegal drugs “taken under supervision by a licensed health care professional.” The defendant argued, and the court ultimately agreed, that the plaintiff was not a qualified individual under the ADA because marijuana is classified as a Schedule 1 illegal substance under the Controlled Substances Act.

Despite the legalization of marijuana in numerous states and localities in recent years, marijuana usage is still illegal at the federal level with “no currently accepted medical use in treatment in the United States,” the court noted. As a result, the court held that a medical marijuana patient is not a qualified individual with a disability for ADA purposes. Further, the court concluded that, unlike some prescription opioid painkillers, medical marijuana use is not covered by the supervised-use exception of the ADA, so the defendant was not required to accommodate plaintiff’s marijuana use for any reason.

State Law Update

With the federal ban in mind, several states have enacted legislation to protect from discrimination qualifying medical cannabis patients (or in some states, medical cannabis “cardholders”) who use or test positive for marijuana. A handful of states also require employers to provide reasonable accommodations for employees with medical marijuana cards. However, in other states, employers can still prohibit marijuana use in the workplace and during work hours, even if the use is for medical purposes. Employers should be aware of the following state laws prohibiting discrimination against and/or requiring accommodation based on an employee’s status as a medical marijuana cardholder:

States prohibiting discrimination against qualifying medical cannabis patients or cardholders:

• Arizona*

• Arkansas

• Delaware*

• Illinois*

• Maine*

• Minnesota

• Missouri**

• New Jersey

• New Mexico

• Oklahoma

• Pennsylvania

• Rhode Island

• Utah*

• Virginia

• Washington***

• West Virginia*

*The prohibition against discrimination is waived if the employer would lose financial or licensing benefits under federal law or regulations.

**The waiver of the prohibition against discrimination is extended to employee positions in which lawful marijuana use: (1) affects a person’s ability to perform job-related responsibilities; (2) affects the safety of others; or (3) conflicts with a bona fide occupational qualification that is reasonably related to the person’s employment.

***Discrimination based on marijuana use is only prohibited during the pre-employment hiring process. As of Jan. 1, employers may not test for cannabis in pre-employment drug testing. The law does not apply to applicants seeking a position: (1) requiring a federal government background investigation or security clearance; (2) in law enforcement, fire protection or the airline or aerospace industries; (3) as a first responder or corrections officer; and (4) that is a safety-sensitive position for which impairment while working presents a substantial risk of death, if the employer identified the position as safety-sensitive before the applicant’s application for employment.

States prohibiting discrimination based on an employee’s off-duty cannabis use outside of the workplace, regardless of medical cardholder status:

• California

Exceptions include: (1) building and construction employees; (2) applicants or employees hired for positions that require federal government background investigations or security clearances; or (3) applicants or employees required to be tested under state or federal law.

• District of Columbia

Exceptions include: (1) employees in safety-sensitive positions; or (2) employers required to take action under federal law or a federal contract or funding agreement.

States requiring accommodation for qualified medical cannabis patients or cardholders:

• Massachusetts

Employers may allow off-site use of medical marijuana despite an employer’s drug-free workplace policy as a reasonable accommodation under Massachusetts’ disability discrimination law, if it does not create an undue hardship on the employer’s business.

• Nevada

Employers are not required to allow medical cannabis use in the workplace or to modify the job or working conditions of an employee who engages in medical cannabis use. However, employers must attempt to make reasonable accommodations for the medical needs of these employees if they hold a valid registry identification card, provided they do not pose a threat of harm or danger, cause undue hardship or prevent the employees from fulfilling their job responsibilities.

Additionally, employers may not discriminate against a person who tested positive for marijuana unless the person is applying for one of the following positions: (1) firefighter; (2) emergency medical technician; (3) an employee that operates a motor vehicle and for which federal or state law requires a drug screening test; or (4) a position, in the employer’s determination, that could adversely affect the safety of others.

• New York

Recognizes certified patients with medical marijuana cards as having a “disability.” Therefore, the law may require reasonable accommodation for employees holding medical marijuana cards just as they are required for employees with other disabilities.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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