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Accommodating Medical Marijuana

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in Employment Law,Human Resources

Eighteen states and the District of Columbia have legalized the use of medical marijuana: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Whether employers in those states must accommodate legal medical marijuana use depends on how courts interpret state law.

For example, the California State Supreme Court ruled that employees do not break the law if they use marijuana for medical reasons; state law does not require employers to accommodate that use.

The U.S. Supreme Court ruled in Gonzales v. Raich, 125 S. Ct. 2195 (2005) that state medical marijuana laws don’t protect individuals who wish to grow marijuana for personal use. That activity still violates the Controlled Substances Act. The decision stopped short of invalidating any state laws. So residents of the 18 states may legally use marijuana in accordance with their state’s law.

The Supreme Court of Oregon was the first state court to consider whether employers must accommodate legal marijuana use in the workplace. The case involved a millwright whose doctor prescribed marijuana for muscle spasms that prevented him from sleeping well at night. His employer’s drug policy prohibited employees from reporting to work with a controlled substance in their systems. The millwright tested positive and was fired. He sued under Oregon’s disability discrimination law. His lawyers argued employers must accommodate use of medical marijuana in the workplace.

The Oregon Supreme Court dismissed the case without ruling on the question. Concluding that his muscle spasms didn’t amount to a disability, it said the disability law didn’t protect the millwright. Thus, whether accommodations are required is still an open question. Washburn v. Columbia Forest Products, No. SC S52254 (Oregon Supreme Court 2006)

Observation: The ADA doesn’t require employers to accommodate current illegal drug use, and the Supreme Court decision would indicate that medical marijuana is still illegal under federal law. However, employers and their legal counsel should also look to their own state disability laws to determine their course of action.

New laws legalizing marijuana for recreational use

Voters in Colorado and Washington state recently approved legalization of marijuana for recreational use. Alaska, Oregon, California and as many as five more states are expected to legalize personal use of marijuana within two years. But take note: Employers—even in those states—can still set strict drug-use policies for their employees and punish employees who fail drug tests. In fact, several large employers in Washington—including Boeing and Costco—have said they’ll continue to prohibit marijuana usage regardless of their state laws.

The Colorado law explicitly says, “Nothing in this (law) is intended to require an employer to permit or to accommodate (marijuana’s) use ... or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

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