As marijuana is becoming increasingly used medically and recreationally, employers are faced with the question of what their stance is on employees that consume cannabis and if their workplace policies should be updated. Marijuana legalization can have a lasting effect on employers that enforce a drug free workplace. They can be placed in a difficult situation trying to avoid disability discrimination lawsuits from employees who use medical marijuana outside of the workspace.
Though marijuana is still illegal under federal law, many states have enacted laws that allow medical marijuana usage and protect patients from discrimination in employment based on their status as medical marijuana users. In New York state, employees and applicants who are registered medical marijuana users are considered to be disabled under the law. By deeming such employees as disabled, these employees will have a stronger standing to sue in the event that they request an accommodation related to their status as a cannabis user and the employer unreasonably denies that request.
For employers that want to adhere to zero tolerance drug policies, the laws do not allow employees to consume marijuana at work, nor do they protect employees who are impaired from marijuana while on duty. These laws also do not allow federal employees to consume medical marijuana as it is still illegal under federal law and therefore not recognized by the Americans with Disabilities Act.
Employers in medical marijuana states should consult experienced employment law counsel before refusing to hire, terminating, or changing any terms or conditions of an employee’s job because of off-duty medical marijuana use.