Medical Marijuana:  Tough Issues for Employers

New Jersey is one of 23 states (and the District of Columbia) that have legalized the use of marijuana for medical purposes.  Note however, that possession and use of marijuana remains illegal under federal law, and the conflict between federal and state laws raises complicated issues for employers.

With regard to enforcement of federal drug laws, the Department of Justice has adopted an enforcement policy that does not include prosecution for possession and use of small amounts of marijuana.  That policy is subject to change at any time, but, given a developing consensus that prosecution and incarceration of low-level drug offenders is both self-defeating and a poor allocation of law enforcement resources, a dramatic shift in federal enforcement policy seems unlikely.

Enforcement issues aside, employers still have to contend with issues in the context of workplace policies, and the rights and obligations of employer and employee.  Employers will have to develop policies to deal with an employee who requests an accommodation under federal or state laws, or who fails a drug test.

Employer Obligations Under Federal Law

Employees in safety-sensitive positions in transportation industries, including trucking and the operation of heavy equipment, must undergo drug and alcohol testing in accordance with US Department of Transportation (“DOT”) regulations.  The DOT has announced that an employee’s sue of marijuana for medical purposes will not excuse the failure of a drug test.  Employers should review and revise policies regarding drug tests to provide for disciplinary action for employees who test positive for marijuana without regard to whether such use was for medical purposes.

Under the federal Americans with Disabilities Act (“ADA”) and similar state laws, employers are required to provide “reasonable accommodations” to an employee with a disability affecting his or her work.  Because federal law prohibits the use or possession of marijuana for any purpose, employers are not required to accommodate an employee’s use of medical marijuana.  However, this does not relieve the employer of the obligation to engage in an interactive process to determine whether the employer must offer an accommodation that does not involve the use of marijuana.

In those states that have legalized the use of marijuana for medical purposes, resolving accommodation issues is a bit more complicated.  State courts that have considered an employee’s claim to an accommodation involving medical marijuana have denied those claims on the theory that allowing such an accommodation conflicts with statutes requiring drug-free workplaces.  The medical marijuana statutes in those states do not, however, provide an explicit right to accommodation.

In other states, such as Arizona, Delaware, New York, Nevada, New Jersey and Minnesota the legalization statutes may require an accommodation, but none of these statutes has yet been tested in the courts.

Workers’ Compensation and Health Insurance

Employers are in uncharted water when it comes to determining whether “recommendations”, i.e., prescriptions, for medical marijuana are covered under health insurance plans, and whether the use of marijuana as part of a physician-recommended treatment plan may be considered in determining whether an employee who makes a workers’ compensation claim will be considered “impaired”, and therefore ineligible for workers’ compensation benefits.

The law around the use of medical marijuana is far from settled, and there is very little guidance available to employers in the form of cases decided by federal or state courts.  Employers should be alert to changes in regulations, and to cases that may change the way in which existing regulations are enforced.