by Liz Stevens, contributing writer
Marijuana now is legal, in some form, in 33 US states. Marijuana use still is illegal at the federal level, but attitudes and laws are changing. That’s partly because medical marijuana is being used legally in many states for the treatment of a variety of conditions, with pain topping the list. And, lawmakers in nearly a dozen states have passed laws that allow for recreational use, too.
American employers must keep pace with these changes by learning how federal laws – such as Occupational Safety and Health Administration (OSHA) standards and the Americans with Disabilities Act (ADA) – now may apply to marijuana use in the workplace and by adjusting the policies toward marijuana use at their companies.
Medicinal and recreational use
Thirty-three states allow cannabis for medical use. As the groundbreaker, California legalized the medicinal use of marijuana in 1996. The latest states – Utah and Missouri followed suit in 2018.
Under most of these laws, medical marijuana is available only to individuals who qualify for a patient registry. In most cases, a doctor must certify a patient’s ailment and make a recommendation that medical marijuana is needed for therapeutic purposes. Each of the states in which it now is legal has a list of allowable conditions. In some states, the lists are restrictive, while in other states they are expansive. According to Leafly.com’s “Qualifying Conditions for a Medical Marijuana Card by State,” Alabama, for example, only allows cannabis or CBD for treating epilepsy. For Michigan, 10 allowable ailments are listed and for Illinois, nearly 40 conditions qualify a patient for medical use.
University of Michigan researcher Kevin Boehnke, PhD, and his colleagues examined how people enrolled in state-approved programs are using medical marijuana. Boehnke and his fellow researchers found that more than 800,000 patients were enrolled in medical marijuana programs in 2017 in 19 states. Their count did not include users in those states that don’t require formal enrollment. Some estimates put the total figure at more than two million medical marijuana patients in the US.
Recreational use of marijuana is legal in Alaska, California, Colorado, District of Columbia, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington. Additionally, 22 states and the District of Columbia have decriminalized possession of small amounts of marijuana.
According to survey results published in the Annals of Internal Medicine, “Approximately 14.6% of US adults [1 in 7] reported using marijuana in the past year .”
On the work front
Whether the topic is medical or recreational use, Marijuana Moment’s legislative tracker shows that state and federal lawmakers are considering more than 750 cannabis-related bills for 2019 sessions. The legal tide has turned, and the incoming wave is rearranging the landscape, the rules and the policies for many employers.
The Manufacturers Association for Plastics Processors (MAPP) recently broadcast “Workplace Highs and Lows: OSHA, the ADA and Medical Marijuana,” a webinar covering medical marijuana and the workplace. The webinar was presented by two attorneys from Steptoe & Johnson PLLC, a US law firm with core strengths in energy, labor and employment, litigation, and transactional law.
Presenter Nelva Smith is a labor and employment attorney and a member of the firm’s Workplace Safety Team. She has presented on several occasions nationally on OSHA topics. Co-presenter Vanessa Towarnicky provides guidance to clients with regard to compliance issues arising under state and federal employment laws, such as the ADA.
The hour-long webinar explored OSHA rules in the workplace, the ADA and its prohibition of discrimination based on disabilities, and how changes in the legal status of marijuana are impacting these regulations.
Smith and Towarnicky delivered a comprehensive presentation, discussing existing laws, emerging legislation and even recent legal case studies. While the regulatory and legal aspects of the topic are best left to the legal professionals, following are some highlights and suggestions for employers.
OSHA and marijuana
OSHA has issued changes in its guidance, as recently as October 2018, of the Record-keeping standard, which includes its anti-retaliation provisions. These changes are more extensive than can be addressed in this overview article.
Separate from OSHA laws, the Drug-free Workplace Act, which covers federal contractors, allows for drug testing – and this may extend to subcontractors of federal prime contractors. Department of Transportation regulations, with zero tolerance for the use of illegal drugs, also allow for drug testing.
As it pertains to marijuana and safety in the workplace, employers should be aware of the implications of OSHA’s General Duty Clause. Under the General Duty Clause an employer shall provide a workplace “…free from recognized hazards that are causing or likely to cause death or serious physical harm…”Employers should be cautious that OSHA could issue citations under the clause if they do not have a clear policy on marijuana use (medical or recreational) in the workplace, particularly when there are safety-sensitive positions involved.
In light of the General Duty Clause, it is imperative that employers train supervisors to recognize impairment observed on-shift that stems from off-shift use of marijuana and establish a policy for this situation. And, the presenters recommended employers create clear policies and procedures for supervisors to follow if they detect on-the-job use and impairment.
ADA and medical marijuana
“A complete mess for courts, employers and attorneys, with diametrically opposing federal vs. state laws.” That’s how the Steptoe & Johnson presenters described the Americans with Disabilities Act in conjunction with state laws that pertain to medical marijuana.
The ADA forbids employers to discriminate based on disability. With medical marijuana use on the rise for a growing number of conditions, employers must be careful to avoid bias against users. Some employers that have always had drug-free, zero tolerance policies and are enforcing these policies with regard to medical marijuana use – in aspects of employment including hiring, firing, advancement, compensation, training and more – now are seeing legal claims as a result. Other cases against employers include “failure to accommodate” claims brought by ADA-qualified individuals. Overall, in ADA lawsuits, some courts are beginning to rule in favor of employees.
Understanding the meaning of “qualified individuals,” “reasonable accommodations” and “undue hardship” requires careful consideration and should be done on a case-by-case basis. It is noteworthy that while people engaged in illegal use of drugs are excluded from claiming disability, recovering drug addicts are protected by ADA rules.
The ADA does not yet protect the use of medical marijuana at the federal level, but state courts may apply anti-discrimination laws differently where medical use has been legalized. And, it is important to note that the Family and Medical Leave Act could cover leave for conditions that are treated with medical marijuana.
To prepare for ADA and medical marijuana issues, the attorneys suggested that employers do the following:
- Check for “qualified employer” status under ADA or state disability laws
- Explore state medical marijuana statutes and what they cover
- Check for medical marijuana laws at the municipal level
- Review and revise workplace policies
- Engage in an interactive process to consider reasonable accommodation
- If using a testing facility, make sure it meets state requirements
- Advise testing facilities of any new workplace policies
The only constant is change
At the state level, three new types of marijuana laws are unfolding: decriminalization (entailing no prosecution for certain levels of possession), medical marijuana statutes (with requirements and conditions) and full legalization. Federal laws are in flux too. Attorney General William Barr says that he will not pursue enforcement of prohibitions against marijuana for individuals who are in compliance with state laws. Legislation is advancing in both the US House and Senate. The House bill, Responsibly Addressing the Marijuana Policy Gap Act of 2019, would amend the Controlled Substance Act regarding the status of medical marijuana and would provide for expunging some marijuana offenses from conviction records. The Senate’s bill, the STATES Act, includes similar language.
The Steptoe & Johnson attorneys conclude that, with marijuana becoming an increasingly important issue and the legal atmosphere primed for fast development, employers must really stay on their toes. The full webinar, “Workplace Highs and Lows: OSHA, the ADA and Medical Marijuana,” is available for purchase.
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