Marijuana Legalization For Employers
Today, several states in the USA have legalized the use of marijuana, not only for medical purposes but also for recreational use. This began with about 24 countries legalizing it for medical use only except five jurisdictions, Oregon, Alaska, Colorado, Washington and Columbia who have allowed the drug to be used for recreational purposes.
Since these states statues are new with little judicial interpretation, employers are left with an uncertain direction on how they should modify their employment policies as well as practice. The uncertainty is also compounded by the fact that marijuana possession, distribution, and use continues to be prohibited by federal law.
The use of marijuana has seen a rapid rise in popularity especially after the discovery of its medicinal features especially for the treatment of chronic diseases as well as in the management of their symptoms.
Recently, a governor in the United States signed a bill that legalized the use, possession as well as the distribution of marijuana either in the form of a liquid, topical, oil or pill, in the diagnosis of over 17 medical conditions. Other states such as New Jersey allow for about ten medical conditions, but users can also use the drug privately.
Employment Law And Marijuana
For most recent laws that have seen the legalization of marijuana, their sole aim is to eliminate the criminal penalties for its users. However, they lack to address the issue of the use of medical marijuana in the workplace. According to a new law in Pennsylvania, employers are explicitly banned from any acts of discrimination against their employees due to their status of using medical marijuana.
It also promotes positive drug test for a particular set of jobs. New Jersey law on medical marijuana is not accommodated in the workplace but does not mention about off-duty use.
For Minnesota, Delaware and Arizona, employees are fully protected by the law whenever they test positive but with medical authorization. This has forced employers to look past positive marijuana drug test, unless when there are signs of impairment as a result of marijuana use in the workplace.
With the little guidance from the law courts in these state, and that impairment cannot be measured using urine-based tests, it is still unclear how employers would accommodate and meet these new standards. According to Larry Besnoff, employers should have zero tolerance policies on drug use, and even refuse to recruits as well as terminate those employees who have tested positive for marijuana use, applying even for those with medical authorization.
They should be clear that use of marijuana, in any form, can lead to termination. Also, employers should seek federal contracts which put them under no obligation to allow the use of marijuana since it is still an illegal drug under federal law.
Employees Protection For Medical Marijuana Use In The Workplace
Most marijuana advocates around the United States hope that the recent legal adjustment regarding the use of marijuana in the workplace would see further changes in the future, protecting employees. For instance, a recent bill in New Jersey aims at protecting employees whose use medical marijuana when off-duty.
Employers are prohibited from terminating or firing an employee, not unless they can prove that off-duty use of marijuana has diminished the ability of an employee to perform their duties at work. According to the bill, employees are allowed to present a medically legitimate explanation for the use of medical marijuana.
Reasonable Accommodations For Medical Marijuana
With the lack of a concrete legislative action, most employees argue that their use of medical marijuana is legally shielded under disabilities discrimination laws. Most state laws such as the Americans with Disabilities Act require that employers reasonably accommodate all the disabled employees, but this tends to be challenging to the employers as it is a fact-sensitive issue that requires the staff and employees to be engaged in an interactive process to evaluate as well as determine the most suitable accommodations.
However, there is yet to be a federal or state court that allows for the accommodation of medical use of marijuana. Also, not a single courts in the United States has ruled that off-duty use of marijuana can never be given a reasonable accommodation, leaving the issue unsettled.
Numerous lawsuits in New Jersey have been filed by employees who claim that their employers never accommodated their disabilities. This creates a tough tension between employees and employers as employees seek the rights to treat their condition using marijuana, and the employees working to ensure that their workplace is safe for both employees as well the customers.
In a recent case where a medical marijuana cardholder was working for a staffing agency, Thomas Barrett, he got employed even after informing his employer of his status. Later, he was terminated by the company after he tested positive on a drug test during one of his work assignment. According to his suit filed in federal court, he claims that his employer failed to accommodate his use of medical marijuana.
However, the agency has also raised a motion dismissing the claims, stating that the use of medical marijuana is not a reasonable accommodation as it is still considered to be illegal, under the federal law. They also argued that testing positive on a drug test could lead to discharge or termination. There is yet to be a decision on the motion by the court, even after the plaintiff alleges that he was protected under the disabled employees as per the New Jersey Law Against Discrimination.
Even as Marijuana advocates push to have reasonable accommodations for the use of marijuana, cases such as that of Thomas Barrett are worth following. The court could make a ruling that employers should consider accommodating the off-duty use of medical marijuana for their disabled employees. Also, there are certain strains of marijuana, such as that utilized in the treatment of Epilepsy in children, that contain microscopic THC chemicals.
Currently, employers in nearly all the states have been spared by the legislatures and courts, allowing them to enforce their zero tolerance policies without accommodating marijuana use. For states such as Pennsylvania and New Jersey, employers should expect further legal developments in the disability accommodation law, protecting employees who test positive for marijuana.