Your employee comes to you and says, “I have a medical marijuana card for anxiety, the deadline on this project is giving me a panic attack. I need to smoke some weed on my break so I can calm down and get my work done.” Do you…
(1) Verify his doctor’s recommendation and tell him to do it outside in the designated smoking area?
(2) Tell him to go smoke at home and don’t come back until the effects wear off?
(3) Send him to get drug tested and terminate him if he tests positive?
As more states legalize medicinal marijuana, questions like these are becoming more common. The answer varies by state, and it’s not always clear-cut.
In California, employers must accommodate employees with medical conditions or disabilities, but they do not have to let them use weed in the workplace, even if a doctor has recommended it to treat their condition.
“Neither federal nor state law prohibits employers from disciplining or terminating employees for marijuana use, even when the drug is used to treat a disability in accordance with California’s medical marijuana law,” said Jinny Kim, director of the disability rights program with the Legal Aid Society-Employment Law Center.
The state’s Compassionate Use Act ensures that people who use marijuana for medical purposes, upon the recommendation of a doctor, are not subject to criminal sanctions or prosecution.
But a 2008 California Supreme Court decision, in Ross vs. RagingWire Telecommunications Inc., made it clear that the Compassionate Use Act does not apply to employment, and that marijuana, even for medical use, remains illegal under federal law. “Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions,” the court said.
“Ross gives great discretion to employers,” said Oakland attorney Robert Raich, a medical marijuana expert.
Employers can prohibit employees in California from possessing, using or being under the influence of marijuana at work, just as they can forbid them from being drunk on the job. But they cannot fire or refuse to hire workers because they have a medical condition they are using marijuana to treat, and that’s where things get hazy.
Federal and California laws prohibit nearly all employers from discriminating against workers or applicants because of a mental or physical disability. They must make reasonable accommodations for the disability, unless it would pose an undue hardship, or unless the disability poses a health or safety threat. What qualifies as an undue hardship depends on the size of the employer, the cost of the accommodation and other individual factors.
The federal Americans with Disabilities Act defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” The California Fair Employment and Housing Act defines it more broadly, as an impairment that makes performance of a major life activity “difficult.” Neither act lists conditions that meet the disability test.
With that in mind, what is the best answer to the question posed above?
It depends on the employer’s policy, if it has one.
An employer could choose No. 1 — let employees who have medical marijuana cards use it at work — but most don’t. Employers “nearly without exception” prohibit marijuana use at work because “it impacts productivity” and could pose a risk to others, says Felicia Reid, an attorney with Hirschfeld Kraemer who represents companies.
It is also “difficult to control. You don’t know from one smoking session to the next what the reaction will be,” said Todd Wulffson, an attorney with Carothers DiSante & Freudenberger who also represents employers.
No. 3 — sending the employee for drug testing — is also problematic. In California, employers can require job applicants to pass a drug test as a condition of employment. But they generally cannot test a current employee unless they have a reasonable suspicion the worker is under the influence.
Random testing of unsuspicous employees is allowed in only a few cases. Federal law requires random testing of certain transportation industry employees. California law allows it for certain safety-sensitive jobs, but there are many rules and safeguards. San Francisco bans random testing in employment, except when required by federal law, said Robert Pattison, an attorney who represented RagingWire in the Supreme Court case.
“Random testing is risky in most settings,” Pattison said. Employers should have a policy that says, “We test employees for drug use under these circumstances,” to ward off complaints that the drug test was an invasion of privacy.
If an employer has a zero-tolerance policy, or no drug policy, and an employee with a medical marijuana card for anxiety says he needs to smoke, he should be sent home.