HR leaders have a tremendous amount of responsibility on their plates these days. One more issue to add to the pile in many states is the legalization of medical marijuana, its impact on the workplace and its impact on marijuana drug testing. According to ProCon.org, 29 states and Washington, D.C. have now legalized medical marijuana at the state level. A concern for employers in these states, or neighboring states, is the effect of this legalization not only on the workforce, but also on whether it provides reasonable accommodation for disability under the Americans with Disabilities Act (ADA).

Disability Claims Under the ADA

The ADA prohibits employers from discriminating against qualified individuals on the basis of disability, which is defined as a physical or mental impairment that substantially limits major life activities, a person who has a history or record of such an impairment or a person who is regarded as having such an impairment, as noted by the ADA.

The ADA prohibits employers from discriminating in reference to job applications, hiring, advancement or termination of employees, compensation of employees, job training or other terms or conditions related to employment. For reasonable accommodations for disability, an accommodation, pursuant to the Equal Employment Opportunity Commission (EEOC) is "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."

Illegal Drugs Under the ADA

Under the ADA, a qualified individual with a disability "shall not include any employee or applicant who is currently engaging in the illegal use of drugs." Illegal drug use, under the ADA, is defined as the use, possession or distribution of drugs deemed unlawful under the Controlled Substances Act. Such terms do not include those drugs taken under the supervision of a licensed health care professional. So, the question for the courts has been whether a business can take adverse action against an employee if that employee is permissibly engaged in a state's medical marijuana, even though marijuana remains illegal at the federal level.

Medical Marijuana Is Not Protected by the ADA as an Accommodation

Courts have, to date, agreed that medical marijuana use does not enjoy the protections of the ADA, however, state courts may apply state anti-discrimination laws differently where marijuana is legalized. As noted by Current Compliance, because marijuana is a Schedule I illegal substance, doctors may not prescribe it. They may only recommend its use. Because of this, companies should consult with legal counsel and consider whether they can continue requiring majiruana drug screening or whether they can take adverse action against an employee who is engaged in marijuana use.

Because of this, companies should consult with legal counsel and consider whether they can continue requiring marijuana drug screening or whether they can take adverse action against an employee who is engaged in marijuana use.

Safety Concerns

In addition to all of the above, businesses must keep safety concerns in mind. Several laws govern workplace safety, and many of these laws govern drug-free workplaces as well. For example, the Occupational Safety and Health Act requires employers to maintain a place of employment "free from recognized hazards." The Drug-Free Workplace Act applies to certain federal contractors and requires a drug-free workplace as well. Finally, the Department of Transportation as well as other agencies prohibit marijuana use for the safety of their workers. Public opinion on marijuana use has continued to become more liberal, according to The National Attorneys General Training and Research Institute.

Continued opinion changes are to be expected as younger generations move into the workforce. Monitoring of not only state but federal law will be critical. As we change as a society, so do our laws. HR leaders need to monitor this area of law, as changes are coming more rapidly than ever.

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Tags: Talent Liability