Compliance Corner: Medical Marijuana
Twenty-nine U.S. states and the District of Columbia have laws that allow for some use of medical marijuana, and employers need to be prepared to react when medical use of the drug intersects with workplace policies. However, there’s no legal consensus about what actions employers should take if a candidate or an employee uses marijuana for medical purposes, despite 95 percent of the population living in jurisdictions with some form of legal marijuana. In this month’s Compliance Corner, we’re digging into the issues employers need to consider when planning their own responses.
A Patchwork of Laws
The landscape of medical marijuana laws is complicated. While states like Oregon and Colorado allow the use of marijuana for recreational purposes, others like Iowa and Texas restrict the types of conditions eligible for the treatment and the level of THC, the psychoactive component of marijuana, the drug can contain. Many states do not provide any employment law protection to people who use medical marijuana; however, some, like Connecticut, do offer protection to employees.
Additionally, all marijuana is illegal under federal law. As the New York Times reports, the Justice Department has given some indication it plans to crack down on the industry.
Traditionally, many employers have had one-size-fits-all policies that have zero tolerance for any use of marijuana. For several years, courts supported those policies. However, recent court rulings indicate employers should proceed with caution when it comes to medical marijuana.
Earlier this year, a Massachusetts court ruled in favor of a woman who was terminated after failing a drug test due to her use of medical marijuana. She argued her off-duty medical marijuana use is a “reasonable accommodation” under the state’s disability law.
The court found the use of medical marijuana was a reasonable accommodation when “medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective.”
More recently, a court in Connecticut ruled in favor of a user of medical marijuana. Connecticut’s law is unique in that it does prevent employers from terminating, penalizing, threatening or refusing to hire a person based on their use of medical marijuana. In this case, an employer rescinded a job offer from a woman after she tested positive for marijuana. The woman presented the employer with her medical marijuana registration and claimed the employer violated the anti-discrimination portion of Connecticut’s law.
The court sided with the woman, finding that the federal law that makes it a crime to use marijuana does not preempt Connecticut’s state law. The court found that the federal law does not make it illegal to employ a person who uses medical marijuana, so the anti-discrimination portion of Connecticut’s law does not conflict with the federal law.
Considering the wide variety of state laws and recent court cases, employers should evaluate their own policies regarding the use of medical marijuana outside of the workplace as well as any state laws that may apply. There is currently no broad legal consensus regarding the issue; employers should watch for any court decisions that can provide clarity.
Compliance Corner is a feature on the PeopleScout blog. At least once a month, we’ll be featuring a compliance issue that’s in the news or on our minds. Understanding the patchwork of labor laws across the world is complicated, but it’s part of what we do best. If you have questions on the compliance issue discussed in this post, please reach out to your PeopleScout account team or contact us at email@example.com.
HR Compliance Trends in 2018
Guiding our clients through the complex compliance landscape is what we do best. While issues like “ban the box” and the #MeToo movement made a splash in 2017, we expect to see even more changes this year. Additionally, the Supreme Court review of arbitration agreements with class-action waivers could impact employers across the country and we could see more answers to questions regarding medical and recreational marijuana. This ebook covers the issues we expect to be big in 2018.
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