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Federal law and marijuana use at work

November 26th, 2012  |  Lorene Park

Earlier this month Colorado and Washington made the recreational use of marijuana legal under state law and Massachusetts joined the growing number of states allowing for the medicinal use of marijuana. However, marijuana is still a controlled substance under federal law and the possession, manufacture or distribution of marijuana, even for medical purposes, violates the federal Controlled Substances Act. That is not to say that federal prosecutors will go after those who use marijuana under state medical marijuana laws. In 2009, the U.S. Attorney General announced guidelines clarifying that federal resources should not be focused on individuals who comply with state laws. Instead, the focus is on drug traffickers who hide behind claims of compliance with state law. Given the mixed signals, employers are well advised to stay informed as this area of law develops. Meanwhile, employers should keep in mind their obligations under other federal laws that could apply to an employee’s medical use of marijuana. For example:

OSHA: Under the Occupational Safety and Health Act, for example, employers have a “general duty” to provide a safe work environment, making the use of marijuana by workers in safety-sensitive positions particularly troublesome. Indeed, the U.S. Department of Transportation issued guidelines prohibiting the use of medical marijuana by transportation workers in certain safety-sensitive jobs even in states where it is legal under state law.

ADA: The law concerning medical marijuana and the Americans with Disabilities Act is unsettled. In a 2012 case, James v the City of Costa Mesa, the Ninth Circuit ruled with respect to Title II of the ADA (concerning discrimination in the provision of public services) that the Act does not protect individuals who claim discrimination based on their medical use of marijuana. The court reasoned that the ADA defines “illegal drug use” by reference to federal rather than state law and individuals who used medicinal marijuana violated federal law, thus falling within the ADA’s illegal drug exclusion. It remains unclear how federal courts will handle medical exams and inquiries concerning medicinal marijuana. Generally, the ADA prohibits medical inquiries of employees that can disclose a disability or the nature or severity of a disability unless job-related and consistent with business necessity.

Government contractors: Employers that are covered federal contractors or grantees must also comply with the federal Drug Free Workplace Act of 1988, which requires those employers to prohibit the use of marijuana as a condition of participation. The U.S. Department of Labor has an elaws advisor to help an employer determine if it is covered by the law and, if so, to provide information on the requirements of the Act.

Workplace policies: After familiarizing themselves with applicable federal and state laws, employers should modify their drug policies to comply. In states allowing for the medicinal use of marijuana and/or prohibiting employment discrimination based on such use, it might be wise to include a disclaimer in the policy stating that it shall not be construed to prohibit conduct allowed under state and federal law after hours and offsite or to discriminate against an individual for engaging in such conduct. In light of the changing legal landscape, each policy should be reviewed by an attorney before use.