Medical Marijuana: Is the Workplace About to Go Up in Smoke?
12 states have legalized medical marijuana. The most recent state to do so is Michigan. Generally speaking, state medical marijuana laws legalize the use of medical marijuana to alleviate the pain, nausea and other medical symptoms caused by specifically enumerated medical conditions.
It appears that many people are taking advantage of these new laws. For example, since Michigan’s medical marijuana program was first implemented in April, 2009, approximately 6,000 Michigan residents have been admitted and received a registry identification card. The Michigan Department of Community Health receives 59 applications daily and the number of applicants is increasing. About 88% of applicants are approved into the program.
Interestingly, there is no current federal law allowing the use of medical marijuana, and the federal government has in the past tried to prevent medical marijuana use in states that have legalized it. This is because marijuana is still a Schedule I controlled substance, which is unlawful under the Federal Controlled Substances Act. However, the Obama administration very recently officially reversed the federal government’s position on medical marijuana and the U.S. Attorney General has ordered law enforcement not to arrest or charge any users or suppliers who comply with state medical marijuana laws.
With all of these developments, it is only a matter of time before medical marijuana issues arise in the workplace, and there may be troublesome gray areas for employers. For example, there is no requirement under the federal Americans with Disabilities Act that employers accommodate a disabled employee’s medical marijuana use, because marijuana is considered illegal under federal law. State laws on this issue vary. For example, Arizona state law requires employers to accommodate the use of medical marijuana in the workplace, California and Michigan do not, and Maine law actually prohibits the possession or use of marijuana in any workplace.
However, even in states where medical marijuana is allowed, there may be legal restrictions on its use at work. For example, Michigan’s medical marijuana law prohibits an individual from (1) undertaking any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice; (2) smoking marijuana in any public place; or (3) operating any motor vehicle while under the influence of marijuana, among other prohibitions.
A second area of concern is whether employers are required to accommodate an employee’s use of medical marijuana outside of work. For example, Michigan law simply does not address whether an employer is required to accommodate an employee’s use of medical marijuana that occurs outside the workplace, when for example, he/she does not pass a work-related drug test. Neither does Michigan law protect an employee who reports to work under the influence of medical marijuana.
A number of states with medical marijuana laws have affirmed the termination of an employee for failing a work-related and consistently enforced drug testing policy due to medical marijuana use. Of course, whether an employee is under the influence is a very fact specific determination and should be treated with the utmost sensitivity, including consultation with legal counsel. Also, the fact that an employee participates in the medical marijuana program is confidential information, and should be protected in the same way as any other employee medical information.
This is a sensitive and developing area of the law. Employers should consult with knowledgeable legal counsel about adopting appropriate policies and procedures that address these issues. Existing policies should also be reviewed by legal counsel in light of the very serious issues that can arise as a result of these legal developments.
It appears that many people are taking advantage of these new laws. For example, since Michigan’s medical marijuana program was first implemented in April, 2009, approximately 6,000 Michigan residents have been admitted and received a registry identification card. The Michigan Department of Community Health receives 59 applications daily and the number of applicants is increasing. About 88% of applicants are approved into the program.
Interestingly, there is no current federal law allowing the use of medical marijuana, and the federal government has in the past tried to prevent medical marijuana use in states that have legalized it. This is because marijuana is still a Schedule I controlled substance, which is unlawful under the Federal Controlled Substances Act. However, the Obama administration very recently officially reversed the federal government’s position on medical marijuana and the U.S. Attorney General has ordered law enforcement not to arrest or charge any users or suppliers who comply with state medical marijuana laws.
With all of these developments, it is only a matter of time before medical marijuana issues arise in the workplace, and there may be troublesome gray areas for employers. For example, there is no requirement under the federal Americans with Disabilities Act that employers accommodate a disabled employee’s medical marijuana use, because marijuana is considered illegal under federal law. State laws on this issue vary. For example, Arizona state law requires employers to accommodate the use of medical marijuana in the workplace, California and Michigan do not, and Maine law actually prohibits the possession or use of marijuana in any workplace.
However, even in states where medical marijuana is allowed, there may be legal restrictions on its use at work. For example, Michigan’s medical marijuana law prohibits an individual from (1) undertaking any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice; (2) smoking marijuana in any public place; or (3) operating any motor vehicle while under the influence of marijuana, among other prohibitions.
A second area of concern is whether employers are required to accommodate an employee’s use of medical marijuana outside of work. For example, Michigan law simply does not address whether an employer is required to accommodate an employee’s use of medical marijuana that occurs outside the workplace, when for example, he/she does not pass a work-related drug test. Neither does Michigan law protect an employee who reports to work under the influence of medical marijuana.
A number of states with medical marijuana laws have affirmed the termination of an employee for failing a work-related and consistently enforced drug testing policy due to medical marijuana use. Of course, whether an employee is under the influence is a very fact specific determination and should be treated with the utmost sensitivity, including consultation with legal counsel. Also, the fact that an employee participates in the medical marijuana program is confidential information, and should be protected in the same way as any other employee medical information.
This is a sensitive and developing area of the law. Employers should consult with knowledgeable legal counsel about adopting appropriate policies and procedures that address these issues. Existing policies should also be reviewed by legal counsel in light of the very serious issues that can arise as a result of these legal developments.
Michelle D. Bayer is an attorney at Frank Haron Weiner, and focuses her practice on employment law, health law, and litigation.