With the most recent election, 32 states and the District of Columbia now allow the use of marijuana (or cannabis) for medical purposes. While each state approaches this differently, the federal law has not changed. Possession and use of medical marijuana continues to be illegal, pursuant to the Controlled Substances Act. This leaves employers asking questions – must we allow the use of medical marijuana in the workplace? Must we accommodate an employee who is a registered medical marijuana user from our drug-free workplace policy?
In Maryland, it is legal for a patient to receive a medical cannabis ID card if they have a chronic or debilitating disease or medical condition that causes: cachexia, anorexia, wasting syndrome, severe or chronic pain, severe nausea, seizures, severe or persistent muscle spasms, glaucoma, post-traumatic stress disorder (PTSD), or another chronic medical condition which is severe and for which other treatments have been ineffective.
As a result, Maryland employers may find it more and more common that they have employees in the workplace that possess a medical cannabis ID card. With that said, Maryland law does not prohibit an employer from testing for use of cannabis (for any reason) or taking action against an employee who tests positive for use of cannabis (for any reason). Furthermore, there is no state or federal law that requires employers to accommodate on-duty drug use in the workplace and no federal or state law that prohibits action if an employee is working under the influence of drugs.
With that said, recent courts in other states have found that marijuana used for medicinal purposes is just as lawful as other medications used by employees and should be treated as such. In Massachusetts, the Supreme Judicial Court held that if someone is taking medication and can perform the essential job functions; is not impaired on the job; and is ready, willing, and able to work, the employer must engage in an interactive process and provide a reasonable accommodation, unless that accommodation would cause an undue hardship for the employer.
So, where does all this leave Maryland companies? The following are a few suggestions worthy of consideration:
- Review your drug policy. Employers do not have to accommodate on-duty drug use or impairment, even by registered medical marijuana users.
- Evaluate your drug testing policies. This means deciding whether to test for marijuana or not, when to test, and if you should accommodate for individuals who test positive for marijuana?
- Discuss your Company’s business culture. Are you a federal contractor, or are there industry safety requirements that need to be followed?
- Evaluate how off-duty medical marijuana use may impair an employee’s ability to perform the job or pose a significant safety risk.
- Review your employee position(s) and job description(s). Is it a safety-sensitive position?
- Recognize that not all forms of medical marijuana produce intoxication. Is there a difference between being under the influence of a substance, and the use of the substance itself?
- Recognize that there are already a number of employees who are at work and under the influence of substances such as antidepressants, pain-killers, anti-anxieties, muscle relaxants, etc. How does your policy address these substances?