SPRING 2020 TODAY’S GENER AL COUNSEL
Labor & Employment
Marijuana in the Workplace By Philip R. Voluck and Jennifer L. Prior
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usinesses across the country are confronting escalating drug use in the workplace by their employees. Underlying this problem is the use of marijuana lawfully prescribed by physicians for medical issues, and the conflict between state and federal law. It will not be resolved anytime soon, leaving employers in a quandary regarding their ability to control the use of marijuana by employees during working hours. Marijuana, regardless of its medical or recreational purpose, remains illegal under the Federal Controlled Substances Act; but 33 states plus the District of Columbia have legalized it for medical use, and 11 states plus the District of Columbia have legalized it for recreational use as well. These inconsistencies have created confusion for employers — and not just in states where it is legal in some form — regarding issues such as drug testing and how to handle positive results, and making reasonable accommodations for medical marijuana users with disabilities.
The U.S. Equal Employment Opportunity Commission issued guidance tied to the Americans with Disabilities Act (ADA) some years ago, allowing an employer to require medical examinations at any stage in the employment process. However, conflicts between federal and state law can arise when medical examinations reveal the applicant or employee’s use of marijuana in states that prohibit discrimination on the basis of legal marijuana use. The EEOC will likely issue new guidance once the full scope of the legal inconsistencies is revealed. Another contradiction between federal and state law exists regarding an employer’s obligation to make reasonable accommodations for medical marijuana users. As marijuana remains illegal under federal law, employers are not required to make such accommodations under the ADA. Use of a controlled substance forfeits protection of qualified individuals with a disability. Many state laws, like Pennsylvania’s Medical Marijuana Act, cover individuals
who use medical marijuana only if that individual has an underlying serious medical condition, which could warrant a reasonable accommodation regardless of marijuana use. Conflicts in federal and state law can also create confusion for employers in states that have legalized medical and/or recreational marijuana use, yet remain subject to certain federal mandates. For example, the Drug-Free Workplace Act applies to entities that receive federal contracts of at least $100,000, or federal grants in any amount. The Act requires, as a condition of funding, maintaining a drug-free workplace where employees are prohibited from engaging in the “unlawful manufacturing, distribution, dispensation, possession, or use of a controlled substance,” including marijuana. Similarly, under the Federal Commercial Motor Vehicle Operator Law, employers are required to drug test their employees during pre-employment, reasonable suspicion, random, returnto-duty, follow-up and post-accident testing. The Department of Transportation enabling regulations specifically requires employers to test employees for marijuana metabolites, and to immediately remove an employee who tests positive for marijuana from safetysensitive positions. Certain state laws prohibit employers from taking an adverse employment action against an employee solely on the basis of the employee’s status as an individual who is certified to use medical marijuana. However, the Pennsylvania law provides some protection for employers. It prohibits employees from possessing or using medical marijuana while at work, allowing employers to discipline employees for being under the influence while at work “when the employee’s conduct falls below the standard of care normally accepted for that position,” and not requiring an employer to commit any act which would cause it to violate federal law.
