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Medical Marijuana in the Workplace

 

How will your company feel the impact of legalized medical marijuana? Medical marijuana is legal in 29 states and the District of Columbia. However, there are still lots of questions about its applicability.

Here are some insights and interpretations:

  • Medical marijuana is prescribed for folks suffering from serious medical conditions including Parkinson's disease, Huntington's disease, cancer, post-traumatic stress disorder and ALS/Lou Gehrig's disease. Although not a cure, it alleviates pain and helps improve quality of life.
  • Cannabis prescriptions vary from state to state. An approved practitioner must confirm that the patient suffers from one of the approved serious medical conditions, and must certify that medical marijuana can benefit the person. When the request is approved, the individual will be issued a medical marijuana card.
  • Your employee will tell you that he or she has been issued a medical marijuana ID card. There is no rule that states that people need to report the prescription to you, the employer.
  • Companies don't have to accommodate an individual who's been prescribed medical marijuana. However, your firm cannot discriminate against someone who's been issued a medical marijuana ID card. Your state governs this and not the federal government, which hasn't legalized marijuana as yet. It's still listed as an illegal Schedule 1 drug under federal law.

What policies might you have to change or update?

  • You may need to change your pre-hire drug screen process or policies. Your firm should determine what roles in the company can be performed by someone who is authorized to use medical marijuana. You may decide that you don't want to hire anyone who tests positive for medical marijuana for a position that requires operation of a forklift, for example. Make this a companywide policy so there's no question that one employee is being treated more favorably than another.
  • If your company allows the use of medical marijuana, it's critical during the pre-hire or random post-hire drug screening that you require employees who test positive to show their medical marijuana ID card.
  • If there's an elevated risk of injury with the use of medical marijuana, it may be beneficial to get guidance from your business insurance/worker's compensation insurance provider.

Look toward local laws, which can vary widely from state to state. For example, a California court recently reaffirmed that an employer can discipline employees even if the marijuana use is recommended by a physician. But in Arizona, an employer may not discriminate in any way against a certified medical marijuana patient who fails a drug test, unless the individual used, possessed or was under the influence of marijuana while at work, or unless failure to take disciplinary action would cause the employer to lose a financial or licensing-related benefit under federal law.

The Americans with Disabilities Act might seem to require you to accept medical marijuana use in certain situations, as it enables some employees to do their jobs. On the other hand, the ADA says that "a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs." This can leave you threading a very fine needle, wanting to be an understanding employer but not wanting to tolerate illegal drugs.

The bottom line? Don't make quick decisions in this area. Give us a call about your situation, and we'll help you make the right decision.

 

 

 
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Our firm provides the information in this e-newsletter for general guidance only, and does not constitute the provision of legal advice, tax advice, accounting services, investment advice, or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal, or other competent advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation. The information is provided "as is," with no assurance or guarantee of completeness, accuracy, or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, and fitness for a particular purpose.
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