Marijuana and the Workplace: The 411 on 420 for Employers

Marijuana as medicine has been legal in California since the 1990s, and in other states, it’s available in various forms for different purposes under a patchwork of restrictions. The drug has been largely de-criminalized and in some places even legal for recreational consumption, but it remains barred under federal law.
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We have 23 states plus Washington, D.C. where there are millions card-carrying marijuana users and four other states where recreational use is allowed.

All of this has made for a confusing situation for employers. Many workforces consider themselves Zero Tolerance, and for years have subscribed to the idea that marijuana consumption of any kind should be strictly forbidden by workers. But now, those same copmanies may be opening themselves up to employment litigation for targeting workers who use marijuana on their off-time or even on the job as medicine.

After all, we wouldn’t forbid a cancer patient to undergo the chemotherapy they needed to fight the cancer. Why should marijuana, which is used to treat many serious conditions, be any different?

This is especially true when we consider that 86 percent of Americans support the right to safe access for medicinal purposes. Quality employees who deem their companies intolerant of their marijuana use may be motivated to move elsewhere. But even beyond that, companies could find themselves the subject of a civil lawsuit if they discriminate against a worker as a result of his or her legal marijuana consumption or activities.

Such was the topic of recent analysis by reporters at Inc., whose findings were later published on Slate.com.

One scenario identified was an “innocent inquiry” from an employee regarding the accommodation of an employee’s medical marijuana use. Legally and whenever possible, employers do have to provide accommodations for workers with disabilities. That means they have to provide accommodation for the underlying medical condition, but not necessarily for being high at work. A company could find itself in trouble if management is not clear that underlying disabilities will receive accommodation, or if a worker is fired for simply asking the question as it pertains to their underlying disability.

Another scenario involves an employee who is very ill and is stoned at work. For example, a cancer patient is undergoing chemotherapy and it is revealed he or she is a medical marijuana patient who consumes a single dose of marijuana on their lunch break to avoid vomiting. Ideally, an employer would have sympathy for the worker and offer some type of accommodation in that case. But barring that, the company will likely have to institute a zero tolerance policy barring all drug use on-the-job – including medical marijuana. There are only three states where companies aren’t allowed to fire medical marijuana patients for testing positive for the drug: Arizona, Delaware and Minnesota. Employers in those locations could still fire workers for being high on the job, but they can’t fire workers for use of it on their own time.

A third situation outlined is when workers inform the employee that they plan to consume the drug – usually for conditions like anxiety or glaucoma – and then return to work. We’ve seen some situations in which employers simply fire the worker on the spot. This may open the company up for litigation. While it’s probably wise to have a policy that bars workers from being under the influence while on the clock, companies can make reasonable accommodations by allowing the worker to go home for the rest of the day, etc.

Finally, there are instances in which companies are finding out about their workers’ (or applicants’) marijuana consumption via social media. If adverse employment action results, depending on the circumstances, one may be able to make a claim for discrimination based on perceived disability. But it depends on the context.

Our experienced marijuana lawyers are prepared to answer worker questions regarding their rights.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 714-937-2050.

Additional Resources:
Marijuana Is Changing the Workplace. Here’s How Employers Should Deal With It. March 27, 2015, By Will Yakowicz, Slate.com
More Blog Entries:
Clearing Record of Prior Marijuana Arrests, Convictions, April 7, 2015, California Medical Marijuana Lawyer Blog