Changing Marijuana Laws Light Up Employment Landscape

For those who find their drama in employment law, the changes in medical marijuana regulation are something of a potboiler. Employers need to adjust their policies to keep up, like homeowners mowing the grass frequently over the summer.

"Best practices vary from state to state because employer obligations are governed by state law, and perhaps even by municipal law," R. Scott Oswald, managing principal of The Employment Law Group, P.C., told Bloomberg BNA in an e-mail. "At the federal level, marijuana remains an illegal drug. The federal government generally doesn’t enforce this law in states that allow medical or recreational use—but until the federal law actually changes, employers aren’t required to accommodate users under the Americans with Disabilities Act, for example."

Under the federal Family and Medical Leave Act, "because it is not a workplace accommodation law, if the employee has a serious health condition and needs time off for that condition, it is irrelevant whether the employee uses medical marijuana during the leave," Megan Holstein, vice president of compliance at ReedGroup, a Westminster, Colo.-based provider of clinical content and software, said. But if someone is seeking substance abuse treatment, she said, "that is covered under ADA and FMLA."

Overall, "it’s local law that matters," Oswald said. "Your crucial first step is to identify the status of medical marijuana laws where your company operates." For purposes of medical marijuana, according to Oswald, the states fall into two categories: "States where medical marijuana is legal, and where employers must accommodate and/or cannot discriminate against users," such as Delaware, and in the second group are "states where employers need not accommodate users of medical marijuana." Oswald said New Jersey is an example of a state where medical marijuana is legal, but employers need not accommodate users. Other states, such as West Virginia, ban all marijuana use.

Although the ADA and the FMLA wouldn’t apply, Holstein suggested employers could "consider the employee’s request for an accommodation for his or her medical marijuana usage as knowledge of an ADA disability and possible FMLA serious health condition," treating the ADA accommodation model as a "guidepost" only. "The accommodation analysis should include examining the type of position to which the employee is returning" after an absence, she said, along with a number of other factors such as "whether the employee can do the job taking the medication" or whether that might pose a hazard. Employers could also "request proof that the employee is a participant in a recognized medical marijuana program," she said.

"Make sure you understand your liability and workers’ compensation insurance stance on medical marijuana," Holstein said. "If you do accommodate when not required by law, and there is an accident, will your insurance cover you and/or the employee? Make sure you have all your ducks in a row."

Holstein’s comments were delivered during a recent Disability Management Employer Coalition webinar sponsored by her company.

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