Are Employers Required to Provide Accommodations for Medical Marijuana?

In addition to prohibiting discrimination, the Americans with Disabilities Act requires employers to make reasonable accommodations to qualified applicants or employees known to have a disability. A reasonable accommodation is basically an adjustment or modification an employer provides to enable individuals with disabilities to have equal employment opportunities. Of course, accommodations vary depending on what each individual needs, and not all individuals with disabilities will need the same accommodations.

There are exceptions to the employer's duty to provide an accommodation

There is an exception to the accommodation requirement, when providing the reasonable accommodation will impose and “undue hardship” on the employer. Undue hardship means that, if the accommodation requires significant difficulty or expense, when considering the size of the employer’s business, its financial resources and other factors, then the employer may not be required to provide the accommodation. In other words, an employer is not required to lower its production standards or lower the quality of its work in order to make an accommodation.

What legalizing marijuana means for employment law

The basic goal of the recent laws legalizing marijuana has been primarily to eliminate the criminal penalties typically associated with marijuana use. However, those laws do not really address the potential workplace issues posed by the legalization of medical marijuana, particularly when it comes to the need for a workplace accommodation. Some states have laws that deal with issues such as positive drug tests. However, currently only three states – Arizona, Delaware and Minnesota – clearly protect employees who test positive for marijuana use, but have medical authorization. A challenge for employers is the requirement to ignore a positive test unless impairment can be demonstrated during work hours, because the typical urinalysis does not actually measure an employee's impairment.

What happens in states where medical marijuana is openly legal?

In some states, such as Illinois, you can find medical marijuana dispensaries. However, in many of those states, employers are still not required to allow their employees who are legally allowed to use medical marijuana to do so in the workplace or during work hours. Put another way, there is no legal authority that requires employers to provide a “reasonable accommodation.' More specifically, employers are generally not required to allow the use of medical marijuana by employees who hold safety-sensitive positions.

Medical marijuana and “reasonable accommodations” under the ADA

A common argument that is raised by employees in support of their requests for an accommodation is that the Americans with Disabilities Act and similar state laws require employers to reasonably accommodate disabled employees. The only exception is when there is a showing of substantial hardship on the employer. However, to this point, there are cases that have required employers to accommodate medical marijuana use.

If you feel you have been denied a reasonable accommodation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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