How does legal marijuana impact my business’s hiring practices?

In our last articles, we highlighted the confusing nature of marijuana, and when it is, or isn’t, legal to use. Now we turn to the issue which hits employers the most: how does legal medical marijuana use impact my business’s hiring practices?

Questions about medical marijuana and when to ask 

An employer cannot ask questions of an applicant that are likely to reveal a disability before the applicant is offered the job. For example, the HR manager cannot ask questions about medical marijuana use during a first interview – or any questions that could reveal the existence of an applicant’s disability. Nor can an HR manager typically ask whether an applicant might need a reasonable accommodation. Those questions are only permitted after a job offer has been made, but before he or she begins to work.

Once the offer is made, the employer can request pre-employment drug testing, with the final decision on hiring pending the drug test results. It’s at this stage that the employer would typically learn of the prospective employee’s marijuana use. Upon questioning, the employee would be required to provide evidence that they have been prescribed marijuana. In general, if the employee’s marijuana use would impact their ability to perform the key aspects of their job, or if the employer would be required to spend a significant amount of money to accommodate the employee, then the employer need not hire that prospective employee.

How does this look in real life?

With that in mind, let’s turn to the issue of medical marijuana. Let’s say your business is in the process of hiring a cybersecurity expert, and an applicant who otherwise meets the criteria for the job (excellent experience, excellent credentials) is conditionally hired pending a drug test. That applicant tests positive, and she shows the HR manager a medical marijuana card. Must that applicant be hired? If she otherwise meets the criteria, and so long as the marijuana use will not occur during work hours, then the HR manager cannot discriminate against that applicant in deciding whom to hire.

Now let’s say that the business is hiring a professional driver. That applicant otherwise meets the criteria for the job, is conditionally hired pending a drug test. That applicant tests positive, and shows the HR manager a medical marijuana card. Must that applicant be hired? In that case, it depends on whether reasonable accommodations can be made, given that the employee will be driving – which could impact not only the safety of others on the road, but also would likely increase the insurance rates for the business. In that case, the HR manager can decline permanently hiring the applicant since reasonable accommodation could not be made.

What if an employee is prescribed marijuana after hiring? 

Do the same rules apply to an employee who is only authorized to use medical marijuana after becoming employed? An employee authorized to use medical marijuana cannot be discriminated against for their use in considering that person for a promotion. The issue is much the same – if the employee can’t do the job given that they use medical marijuana, and they can’t be reasonably accommodated, then they need not be employed.

Bottom line: an employer need not accommodate workplace use of marijuana, whether medical or recreational. If an employee arrives at work high, or gets high at work, their employer can penalize them. However, where an employee is permitted to use marijuana (whether recreationally or medically), the employer cannot penalize the employee for off-duty marijuana use.

SOURCES:

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.

Published by nellabloom

I help small-business owners with their legal needs – from startup to shut-down and the issues in between.

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