More and more states are legalizing medical marijuana so you need to be aware of its impact in the workplace.

Marijuana was made illegal at the federal level in 1937. However, since 1996, 28 states and the District of Columbia have enacted laws legalizing medical marijuana and 15 states have some form of limited medical marijuana use. In addition, some states have also legalized the recreational use of marijuana.

Tawny Alvarez of Verrill Dana, LLP, attorneys at law, speaking at a recent NationaLease meeting, said it is important to remember the federal laws continue to outlaw the production, sale or possession of marijuana. She adds that state laws have no effect on federal laws. So in essence, people producing, selling or possessing marijuana are in a difficult legal position: Their activities are legal under state law, but illegal under federal law.

In 2009, the Department of Justice issued a memorandum announcing that it would no longer make it an enforcement priority to pursue those who are in “clear and unambiguous compliance” with state medical marijuana laws. In December 2014 the DOJ was prevented from using federal funds to pursue state-legal medical marijuana programs.

What does all this mean to employers? Alvarez presented a case study involving an employee who tested positive for marijuana and then presented a medical marijuana certificate for chronic back pain, a condition the employer was not aware of. The employee said he never works while impaired. One thing to keep in mind is that there is no current test for impairment.

The employee said an adverse action to his use of medical marijuana is disability discrimination and he pointed out that other employees are prescribed medication which violates testing standards but that is not held against them. He added that no one ever saw anything he did at work that raised concerns about his fitness for duty or his ability to perform his job satisfactorily. He further pointed out that the employer can’t prove that he was impaired and that impairment should be the only concern.

The employer argues that requiring him to refrain from disciplining this employee in essence requires him to violate federal law which prohibits the use of marijuana and that use of marijuana violates the company’s anti-drug policy. The employer adds that the State Substance Abuse testing law has a presumption of impairment and that there is no other requirement for the employer to prove impairment.

The problem is there is no clear-cut answer to who is right or who will prevail in a lawsuit as these types of cases are just beginning to work their way through the courts. What is clear is that the courts have viewed this issue under the Americans with Disabilities Act and have ruled that allowing the use of medical marijuana is not a reasonable accommodation.

So what’s the bottom-line regarding medical marijuana and the workplace? Here are some takeaways from Alvarez’s presentation.

  • Medical marijuana use is a growing challenge for employers
  • Marijuana is still illegal under federal law
  • Employers do not have to tolerate drug use at work or employees being impaired while at work
  • Impairment is difficult to prove
  • There is uncertainty in the law
  • If an employee has a medical marijuana certificate, that cannot be a basis for action
  • An employee’s use of medical marijuana probably can be a basis for action
  • The employer needs clear proof regarding observed behavior or a positive test results pursuant to a state approved drug testing program
  • Consult your attorney until clearer guidance is available

The use of medical marijuana will likely continue so you need to keep up-to-date on any changes to the law that will impact your business.