Medical Marijuana in the Workplace
It is now legal to use medical marijuana in Ohio. The law went into effect on September 8, 2018 with little fanfare. Employers across the state are asking questions. Here are answers to some of the most common questions we’re hearing from clients:
- Do I have to allow employees to use medical marijuana? NO
- Can I allow employees to use medical marijuana? YES
- Can I prohibit the use at work and outside of work? YES
- Does the ADA require me to allow employees to use medical marijuana as a reasonable accommodation? NO
- Should I review my company’s drug policy with an attorney to consider the impact of medical marijuana? DEFINITELY
While there is a lot of discussion about medical marijuana, the bottom line for employers is that nothing has changed unless the company wants it to. Companies are still free to determine that employees who use marijuana (even medical marijuana) may not work for the company. Employers can refuse to hire users and can terminate the employment of employees who use. At the risk of stating the obvious, NO ONE should be permitted to be under the influence of marijuana (even medical marijuana) at work.
The ADA requires that employers reasonably accommodate employees whose disability substantially limits a major life activity. However, that does not mean that the employee is entitled to their preferred accommodation. Employers are permitted to push back in circumstances where another reasonable accommodation is available, even if it is not the preferred accommodation. For example, an employer would not need to install an elevator to help an employee ascend a couple of steps when a simple ramp would serve the same function at a fraction of the cost.
Some companies are asking whether they can continue to employ individuals who use medical marijuana. The answer is “Yes, but watch out for the slippery slope.” Employers who employ marijuana users expose themselves to risk that they may not otherwise have. It is absolutely critical to examine job duties to make sure that the employee is not in a safety-sensitive position. Then, all similarly situated employees should be treated the same – i.e., don’t discriminate based upon age, race, gender, etc. That does not mean that ALL employees need to be treated the same. It would be fine to say that clerical staff can use medical marijuana but delivery drivers cannot.
Not surprisingly, the “devil is in the details.” Employers should review their policies with an experienced employment attorney regardless of whether they want to allow or prohibit employees from using medical marijuana. As Ben Franklin once said, “An ounce of prevention is worth a pound of cure.”