|Ask the Experts" guest blog content provided to Q4iNetwork Consultants by Think HR|
Question: Is medical marijuana use protected by the Americans with Disabilities Act (ADA)? If so, what accommodations would be considered reasonable?
Answer: You are not required to accommodate medical marijuana use under the Americans with Disabilities Act (ADA). Even though medical marijuana is legal in many states, under the federal Controlled Substances Act (CSA), marijuana is still illegal. The ADA expressly excludes people who use illegal drugs from its definition of “qualified individual with a disability.”
However, as a best practice, you should still engage in the ADA interactive process if a request for a reasonable accommodation for medical marijuana use is made. Under the ADA, employers are required to provide reasonable accommodation to qualified individuals with disabilities unless doing so would cause an undue hardship on the employer. Any request for a reasonable accommodation triggers an interactive process with the employee to determine:
- Whether the employee or applicant is a qualified individual with a disability, meaning they can perform the essential functions of the job with a reasonable accommodation; and
- What the employee’s needs are, and which appropriate accommodations could be made.
If the employee’s physician has determined that medical marijuana is the most effective treatment, a possible reasonable accommodation would be a waiver of your anti-drug policy. However, if the employee is in a safety-sensitive position, it may pose an undue hardship to make that accommodation and you should consider any other possible accommodations before denying the request.
There are no reasonable accommodations that would work in every circumstance. You will need to review the essential functions and safety requirements of the job with the employee to determine what types of reasonable accommodations may be acceptable while not imposing an undue hardship.
The courts may not concur
While medical marijuana use is not protected by the ADA, this is being challenged at the state level. For example, in July 2017, the Massachusetts Supreme Judicial Court held in Barbuto v. Advantage Sales and Marketing that an employee who was fired after testing positive for marijuana could proceed with a “handicap discrimination” claim under the Massachusetts Fair Employment Practices Act.
In allowing the employee’s discrimination claim to go forward, the Court expressly rejected the employer’s argument that, because marijuana is illegal under federal law, requiring an employer to accommodate medical marijuana use is per se unreasonable.
Instead, the Court held that, at a minimum, the employer was obligated to engage in an interactive dialogue concerning the employee’s ongoing medicinal marijuana use before terminating her employment. The Court did not rule out the possibility that accommodating medicinal marijuana use could pose an undue hardship, leaving that issue open for the employer to address at a later date.
ThinkHR customers can find drug use policies specific to their state in the Employee Handbook Builder.
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