“I am completely stressed out and need marijuana for anxiety,”
says your employee breathlessly.
“I may need to smoke during lunch or my breaks
so I can calm down and get some work done.”
Are you allowed to:
- Ask for a doctor’s note verifying the employee’s claims?
- Prohibit the employee from smoking during work?
- Test the employee for drugs?
- Fire the employee because the marijuana might interfere with the employee’s job duties?
As marijuana becomes legalized in states like California and others, the answers to these questions fall into grey areas for which there is not an abundance of authority. However, employers still need guidance. Check out our guide below to help deal with employees who already are or plan to start making recreational or medicinal use of marijuana.
The starting point when considering how to respond to marijuana use by employees is generally grounded in employment law: in California, it is unlawful for employers to discriminate against or treat employees with a disability different than other employees, or refuse to accommodate their medical needs. Anxiety and most medical conditions that marijuana is intended to diagnose (such as chronic pain, cancer, anorexia, AIDS, glaucoma, arthritis, migraines, etc.) generally count as medical disabilities. Employers must make reasonable accommodations for the employees’ disability, unless it would cause undue hardship or poses a health or safety threat to the employer or employer’s business. For a sample reasonable accommodation checklist, please click here.
That being said, employers have great discretion to bar employees from using drugs, possessing drugs, or being under the influence of drugs at the workplace. The California Supreme Court recently ruled that employers are NOT required to accommodate the use of illegal drugs. It is the equivalent of prohibiting an employee from being drunk on the job – alcohol is legal, but being drunk on the job would give an employer ample justification to take adverse action against the employee. However, employers cannot discriminate against, refuse to hire, demote, fail to promote, or otherwise act against employees simply because they have a medical condition that is being treated by medical marijuana. Based on the new Court decision, however, employers do NOT have to accommodate off-duty, off-premises marijuana use.
Dealing with employees under the influence of marijuana can be thorny, but here are some suggestions on best practices:
- Asking for a Doctor’s Note for Cases of Medicinal Use. There is authority in California that prohibits employers from asking for a doctor’s note that seeks to disclose the nature of the condition being treated. At least one federal court in California has held that it is unlawful for employers to ask employees to disclose underlying medical conditions, eliciting actual or perceived disability. It is lawful, on the other hand, to ask the employee for a doctor’s note that addresses the prognosis (what the employee can and cannot do) rather than the underlying medical condition.
- Drug Testing. Employers should also be wary of drug-testing an employee who has disclosed they are using marijuana to treat a medical condition. California law does allow employer to screen job applicants for drugs and drug-test them before they are hired; however, employers generally cannot test a current employee unless there is a reasonable suspicion that the worker is under the influence. Random testing of employees, who are not viewed to be under the influence, is limited only in very specific circumstances (like transportation employees/drivers subject to federal safety laws).
- Prohibition. The best way to handle the situation is to simply enact a policy that prohibits marijuana at the workplace. Enacting a zero-tolerance policy, or no-drug policy will allow the employer to simply send a worker home if the worker need to use or is under the influence of drugs.
- Termination/Demotion. Be very wary of taking adverse actions, demoting, failing to promote, hiring, firing, etc. employees who have marijuana in their system that they may have used off duty. Although employers may prohibit employees from possessing or consuming alcohol or drugs at work, employers can get into trouble for attempting to regulate or prohibit employee’s activity off-duty. Although the new Court case states that employers have no obligation to accommodate marijuana-smoking employees, that is a different question of whether they have an obligation to accommodate the medical disability.
Sample Medical Marijuana Policy? Needs to see an example of a medical marijuana policy for informational purposes? Please check out a sample here.
AXIS Legal Counsel’s Business and Corporations Practice provides legal advice to businesses ona variety of legal matters involving employees and labor law. We can assist in establishing compliance with California’s Employment and Wage & Hour laws, employee handbooks, leave policies, promotions, demotions, terminations, payroll matters, and other employment requirements. AXIS offers full-service legal support to businesses and companies, and can also assist your company with business formations and governance, contracts, deals, and transactions, administration & operations, risk management / insurance, labor/employment matters, intellectual property, healthcare, crisis management, directors/officers, private/data security, technology, statutory/legal compliance, and business litigation.
For information on retaining AXIS Legal Counsel to represent your business in connection with any legal matter, contact [email protected] or call (213) 403-0130 for a confidential consultation.
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