Medical marijuana was approved by Massachusetts voters in 2012, but Massachusetts employers are still running into trouble related to their drug use policies and testing procedures. Why is there so much confusion? That’s probably because the regulations don’t exactly provide guidance on the effect that the law has on related state and federal law and policy, including employment law and workplace drug use and policies.
What the Medical Marijuana Law States
The Massachusetts law states “Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment, school bus or on school grounds, in any youth center, in any correctional facility, or of smoking medical marijuana in any public place.” So why do employers still think they need to provide an accommodation for their employees who use medical marijuana?
The Americans with Disabilities Act Stance on Medical Marijuana
The ADA requires employers with 15 or more employees to provide a reasonable accommodation to a qualified employee with a “disability” within the meaning of the ADA that substantially limits one or more major life activity or has a record of a disability. What is a qualified employee? One who possesses the skill, experience, and education to do the job and able to perform the essential functions of a position with or without any reasonable accommodation.
Medical marijuana use is not protected under the ADA because the ADA does not protect illegal drug use. And, marijuana is still illegal under federal law. So, the ADA does not require employers to accommodate medical marijuana use by employees. So what is the confusion?
While it seems obvious that the ADA doesn’t require medical marijuana accommodation unless there is a change in federal law, this is not the case with state disability laws. The uncertainty lies at the state level, where not all disability discrimination laws include restrictions on illegal drug use as the ADA does.
Massachusetts Employment Discrimination Laws
Under Massachusetts law, “an individual with a disability is a person with a mental or physical impairment that substantially limits one or more major life activities; who has a history of such an impairment; or who is perceived (even if erroneously) as having such an impairment.”
Massachusetts employment discrimination laws apply to employers with six or more employees, and any employer of a domestic worker regardless of the employer’s size. Employers are prohibited from discriminating against employees based on race, color, religious creed, national origin, ancestry, sex, gender identity, age, criminal record (inquiries only), handicap (disability), mental illness, retaliation, sexual harassment, sexual orientation, active military personnel, and genetics.
Reasonable Accommodations for Medical Marijuana
A reasonable accommodation is a change in the way duties are performed to help a disabled employee perform his or her job duties or enjoy the benefits and privileges of employment. If a disabled employee requests a reasonable accommodation, an employer must provide it unless doing so would cause “undue hardship.” An undue hardship is defined as “significant difficulty or expense for the employer given its size, financial resources, and the needs of the business.” An employer may not refuse to provide an accommodation just because it involves some sort of cost.
Thus, employers must reasonably accommodate the underlying disability associated with the legal marijuana use. Employers must engage in an interactive process with an employee who has a disability to determine what kind of reasonable accommodations it can provide. It is crucial that the employer engages in an interactive process when providing accommodations, especially to avoid litigation from employees.
Company Policies on Reasonable Accommodations
If a company or employer wants to offer an accommodation to their employees, they should add a statement into their workplace drug use policy and notify all current and future employees about the policy. It is also important to note in the policy that the accommodation would depend the employee’s position. If the position were a safety sensitive position i.e. operating machinery in a manufacturing facility, the employer may find that an employee cannot perform their job duties while under the influence of medically prescribed marijuana. But, if an employee is not in a safety sensitive position i.e. a sales representative who does not drive during work hours, an employer may make an accommodation for their employee.
Recommendations for HR Departments
A company’s HR department, as well as supervisors and senior officers should know about the policy and how to handle an employee who presents them with a disability and a request for an accommodation. Also, it is important for job descriptions to correlate with a company’s drug policy. The “essential functions” of a job should outline what is necessary to perform those job functions. A reasonable accommodation may not be able to be met if the essential functions are not able to be met.
The best advice for any company who has a drug use policy and/or who drug tests their employees is to keep their policy up to date. If any changes are made to the policy, notify all employees and give advanced notice before implementing the policy. Also, try and stay updates on not only federal laws, but state laws pertaining to your company. Lastly, try your best to work with your current and future employees. If an employee confronts you with a disability related to their medical marijuana use, talk to the employee. If your employee has a disability but can still perform the essential functions of his or her job, engage in an interactive process by discussing the nature of the disability and what you might do to provide a reasonable accommodation.
OccuMed of New England not only provides consultative services on developing and revising Workplace Drug and Alcohol Use Policies, we provide in-house and on-site drug testing. For more information on our services, visit our website: www.occumedne.com.