Patricia Chaney

Answering 5 Common Employer Questions About Medical Marijuana at Work

Across the country, marijuana is changing in the eyes of the public and the law — leaving employers to address the issue of medical marijuana at work. You can maintain a zero-tolerance policy for recreational marijuana use, even if it’s legal in your state. However, medical marijuana is a little trickier.

Marijuana is prescribed for a range of health conditions, including seizures, Crohn’s disease, cancer side effects and nerve disorders such as multiple sclerosis. A growing number of states have already permitted medical use of the drug in some form.

What does that mean for you as an employer? Recent court cases offer some guidance, but overall the onus falls on states and employers to make their own policies. Drafting office guidelines from scratch isn’t easy, so here are five questions to keep in mind as you develop your medical marijuana policy.

1. Am I Legally Required to Accommodate Medical Marijuana Usage?

Not exactly. Many people who use medical marijuana for an illness have conditions that would allow them to claim accommodations under the Americans with Disabilities Act (ADA). However, despite state laws, marijuana is still listed as an illegal drug at the national level under the Controlled Substances Act. That means its use isn’t covered by the federal ADA.

Employees have challenged employers in court when they’ve been fired for medical use under a company’s zero-tolerance policy. Outcomes vary by state: Some courts have ruled that the employer should accommodate the drug usage as long as it doesn’t place an undue burden on or pose a risk to anyone else in the workplace. Several states have adopted laws preventing employers from discriminating against employees — such as firing them or rejecting their candidacy for a job — solely because they use medical marijuana. This is quickly becoming the mainstream viewpoint, which is why it’s best to proactively create a policy for your workplace.

Keep in mind, too, that accommodating marijuana use by an employee is not the same thing as allowing its use at work. Employers can create policies against permitting use or possession at work.

2. How Do I Approach Drug Testing If an Employee Uses Medical Marijuana?

One of the trickier aspects of marijuana, as opposed to alcohol, is that the body metabolizes it differently. You cannot tell how long ago the person used the drug, and a positive drug test doesn’t necessarily mean they’re intoxicated. Many employers no longer screen for marijuana, screen only after an incident or continually screen but don’t treat the results as grounds for hiring or firing.

You can ban recreational use, but if an employee has a medical marijuana card, you may not want to be so quick to fire them for a positive test. Clearly outline exceptions for medical use and how use at work will be tolerated (or not). That way, employees can go into drug tests confident that they understand the company’s expectations.

3. Can I Fire an Employee for Using Medical Marijuana?

Your policy can forbid use at work, but zero-tolerance policies that extend to after hours could face court challenges in the coming years. Your medical marijuana policy should clarify what exactly the consequences are for violating the rules — one that includes warnings, rather than immediate termination, may face fewer legal challenges.

Terminating an employee for using medical marijuana outside of work probably won’t turn out in your favor. It’s impossible to know when the employee used the drug; it may have been days ago. Plus, if the employee has a prescription for medical use, it’s expected that they’ll use the drug outside of work.

Any action you take should follow company policy. As you develop that policy, then, consider the safety and environmental aspects of the job — does medical marijuana use pose a safety risk? For example, a business of mostly office workers may not see any negative impact from allowing medical marijuana use outside of work. Use among truck drivers, delivery personnel or forklift operators may pose more of a safety risk. You can also base your policy on productivity. If an employee is less productive when using medical marijuana, your policy can direct managers to document and address those performance changes.

4. How Can I Find Information for My State?

New court cases continue to arise across the country, and those decisions may shape your workplace policies. Pay attention not only to your state, but what’s happening around the country. You can find state-by-state information at the National Conference of State Legislatures.

5. What Do I Need to Know From a Health Benefits and Insurance Perspective?

Medical marijuana is not covered by medical insurance. Workers’ compensation claims are another evolving area, though. For now, it seems that medical marijuana users may be considered at fault for workplace accidents and wouldn’t qualify for workers’ compensation claims.

The state of medical marijuana use is still full of uncertainty. As an employer, the first step is to develop a medical marijuana policy in writing and enforce that policy consistently. Communicating your expectations for how you’ll address medical marijuana at work reduces the chances an employee will feel targeted. A successful policy takes employees’ needs into consideration and fits them within the needs of the business — exactly what this looks like in your workplace is up to you.

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