How does medical marijuana use affect employment?

Fisher & Phillips Partner, Danielle Urban, was quoted in an article on August 12, 2014:”How does medical marijuana use affect employment?”


How does medical marijuana use affect employment?

Reconciling medical marijuana with the ADA raises questions

(AP Photo/Minnesota Department of Human Services)(AP Photo/Minnesota Department of Human Services)

As marijuana legalization spreads from municipality to municipality and state to state, employers watching this wave of legislation to end marijuana prohibition have good reason to wonder about the future of their employment policies. And in questionable workplace situations that involve medical marijuana, employers might be confused about what they are and are not required to accommodate under theAmericans with Disabilities Act.

The annual Disability Management Employer Coalition’s Annual Conference in Las Vegas included a panel discussion Aug. 12, “Cautionary Tales: The Impact of Legalized Marijuana on the Workplace.” DMEC executive director Terri Rhodes noted that any employer with a federal contract will want to pay special attention to this issue.

“What’s really driving this issue is the federal contract component,” Rhodes said. “Employers that have federal contracts must comply with federal law, and the federal government is still saying that the use of marijuana is illegal.

“In order to get reimbursement through these contracts,” Rhodes said, “employers need to comply with the regulations and to maintain a drug-free workplace. If an employee does test positive for marijuana, and they do have a medical marijuana card in a state where that’s approved, employers have to deal with that issue.”

The inability to accurately test for marijuana impairment compounds this problem; in states that have passed marijuana-related impairment laws, such as the driving-while-impaired law in Colorado, much debate has centered around where to set the legal blood limit for THC (the psychoactive ingredient in marijuana).

Because THC is not water-soluble, it remains in the body and bloodstream for up to 30 days after consumption – so a medical marijuana user with a chronic pain condition who medicates regularly throughout the day likely will have to have a much higher blood-THC content than a casual user, but the casual user likely will be more impaired from a physical and mental standpoint than the chronic one.

“Under the ADA, there is no obligation to accommodate marijuana use,” explains Danielle Urban, an employment attorney with the Fisher & Phillips law firm in Denver, “even if someone has a disability and a health care professional has said the employee might benefit from the medical use of marijuana. As an employer, you are free to have a zero-tolerance policy, with some exceptions, such as states like Arizona and Minnesota.”

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