In my last article, we learned that marijuana is not unequivocally legal everywhere. Now we’ll discuss when medical marijuana use must be accommodated by an employer or prospective employer, and how the issue arises.
Disability and Accommodation
The Americans with Disabilities Act, or ADA, has been used to address the use of medical marijuana. An employee who is permitted to use medical marijuana is treated as an employee who is disabled. Under the ADA (which applies to employers employing fifteen or more employees), any applicant, including one with a disability, must be able to meet the requirements for the job. An applicant with a disability must be able to perform the ‘essential functions’ of that job, either on her or his own, or with a ‘reasonable accommodation.’ The employer cannot discriminate against an applicant who, with that accommodation, could perform the job – but the employer still has the discretion to hire the applicant of their choosing.
So, then, what is a ‘reasonable accommodation’ at law? It is one that would not cause ‘undue hardship’ to the employer – meaning, which would be significantly difficult to implement, or expensive.
Timing of Marijuana Use
Finally, a point of clarity! An employer need not accommodate an impaired employee in the workplace. No matter if that employee has a medical marijuana card, or if recreational use is permitted – an employee who comes to work high can be sent home. It may be that the employee’s being sent home is not an adverse employment action – but they can be sent home nonetheless.
In practice, this means that an employee cannot show up to work impaired, even if they are prescribed marijuana. An employee would be limited to use medical marijuana after working hours. If the effects of the marijuana last through to the workday, and impair the employee – or make it hard or dangerous for her to perform the essential functions of the job – then the employee cannot be reasonably accommodated and can be sent home.
Nella Bloom, Esq. is the Managing Member of Bloom & Bloom, LLC, a Philadelphia-based law firm specializing in small and emerging businesses. Ms. Bloom acts as outside general counsel for clients in varied industries and in all places in their life cycles. Ms. Bloom helps businesses start up, thrive, and prepare themselves for sale. Ms. Bloom is licensed to practice law in Pennsylvania, New Jersey, and Delaware. For more information on Bloom & Bloom, LLC, visit http://www.bloomandbloom.net.
Pennsylvania’s Medical Marijuana Act (Act 16 of 2018, 35 P.S. §§ 10231.101 et seq.).
Susan M. Heathfield, What Information is Stored in Employee Medical Records? HR’s Legal Obligation to Protect Medical Information About Employees, https://www.thebalancecareers.com/medical-file-contents-1918186 (last visited Feb. 7, 2020).
Eddie Miller and Boris Tsibelman, 5 Tips to Help Employers Deal With Legal Marijuana Use at Work, https://www.thebalancecareers.com/employers-legal-marijuana-use-1917551 (last visited Feb. 7, 2020).
The U.S. Equal Employment Opportunity Commission, Job Applicants and the Americans with Disabilities Act, https://www.eeoc.gov/facts/jobapplicant.html (last visited Feb. 7, 2020).
The U.S. Equal Employment Opportunity Commission, Pre-Employment Inquiries and Medical Questions & Examinations, https://www.eeoc.gov/laws/practices/inquiries_medical.cfm (last visited Feb. 7, 2020).
© Nella M. Bloom 2020 – All Rights Reserved.