Workplace Protections For Medical Marijuana Patients

If you use medical marijuana, you may be confused about what protections you have in the workplace, which is entirely understandable. The truth is that there is a lot of gray area around the use of medical marijuana. Federal law is different from many state laws, and state laws can vary significantly from one to the next.

The Drug Enforcement Administration (DEA) still classifies marijuana as a Schedule I substance, meaning that it has a high potential for addiction and has no accepted medical uses. This means that doctors cannot prescribe marijuana, but in states where medical marijuana is legal, providers can confirm that a person has a condition with symptoms that marijuana can help alleviate.

But what does this mean for medical marijuana users? How do these laws apply, and what workplace protections are in place? 

Unfortunately, the answers to these questions aren’t black and white. Here is what you need to know about medical marijuana in the workplace.

Federal vs state laws

When it comes to medicinal marijuana, state and federal laws differ, and in some cases, these differences are quite significant. States that share a border may have different laws entirely, making it difficult to understand just what is legal and what protections you have if you use medical marijuana. Here are some things to consider.

Federal laws

According to federal laws, marijuana is a psychoactive drug, classified as a Schedule I controlled substance, and is strictly regulated. Using, selling, or distributing marijuana can have several consequences, including being unable to purchase or possess a firearm and being ineligible for federal employment, military service, or federal housing.

Federal law does not distinguish between recreational and medicinal use. The FDA does not approve medical marijuana, though one drug with CBD as the active ingredient and a few with synthetic THC have been approved for various conditions.

State laws

In contrast to federal regulations, many states and territories have passed separate laws moving away from prohibiting marijuana and towards allowing the cultivation, sale, distribution, and possession of marijuana, either for medicinal or recreational purposes.

These laws vary significantly from state to state. Only two states, Kansas and Idaho, have no public cannabis access programs. Forty states and the District of Columbia allow the use of medical marijuana, while eight states have laws in place for medicinal use of low-THC, high cannabidiol products. These are not the same as a medical marijuana program; low-THC programs are usually for patients who have specific, severe medical conditions, the details of which are spelled out in each state’s legislature.

How can federal and state laws co-exist? 

Federal and state laws relating to medicinal marijuana contradict each other in many ways. If you’re concerned about using medical marijuana in the workplace, it can help to understand how the federal government responds to state laws concerning medicinal marijuana.

The first thing to know is that state laws don’t change the status of marijuana under federal law. Generally, the federal response has been chiefly to let states implement their own medical marijuana laws without interfering. In the United States, the federal government and state governments share power, which is why these contradicting laws can exist. Ultimately, federal law supersedes state law because state laws only apply in that state, and federal laws apply across the entire country. 

The growth and possession of marijuana remains a crime under federal law. Though there is nothing official defining what the federal government will prosecute, enforcement of federal regulations concerning marijuana has mostly focused on criminal networks and the illegal drug trader rather than state-regulated medical marijuana programs.

Despite so many states moving toward legalization for either medicinal or recreational purposes, there is no structure in place for federal legalization. However, since California passed the first medical marijuana laws in the country in 1996, states where medical marijuana is legal have not attempted to prevent the federal government from enforcing federal laws when necessary. The states themselves are not directly involved in cultivating or selling medical marijuana, though they do administer licenses to private companies that do.

Do protections exist?

If you use medicinal marijuana, protections vary significantly based on the state where you live and the company where you work. Most states do not legislate workplace accommodations or protections for people who use medicinal marijuana, and leave policies and disciplinary actions up to individual employers.

Several states where medical cannabis is legal have some type of employment protections for medical cannabis cardholders, but most do not require employers to provide accommodations for medical cannabis use. One of the few states that does include accommodations is Nevada, where the law directs employers to attempt reasonable accommodation for medical‑cannabis cardholders, though even this law is subject to limitations.

What is and is not covered?

If you live in a state where residents have access to medicinal marijuana, check with your employer to see what is and is not covered. Because of the differences in medicinal marijuana laws and the way they are enforced, employers usually have their own policies and procedures when it comes to accommodating users.

What about the Americans with Disabilities Act?

The Americans with Disabilities Act (ADA) was a landmark piece of legislation that helped guarantee that people with disabilities have the same employment opportunities as everyone else. It defines disability as a mental or physical impairment that substantially limits at least one major life activity. 

The ADA protects employees from discrimination and requires employers to make reasonable workplace accommodations. It also requires employees to be able to perform the essential functions of their jobs with these accommodations in place.

That said, the differences in state and federal laws concerning medicinal marijuana use can make it challenging to understand what, if any, protections you may have at work related to medicinal marijuana use.

Drug testing for marijuana use can be particularly challenging. Drug tests do not determine if someone is currently under the effects of marijuana, only if they have used it in the last few days or weeks. Because of this, someone who tests positive may have used medicinal marijuana when they were off-duty, for example, to help manage pain when they arrived home at the end of their shift, or to help with insomnia due to anxiety, so they could get a good night’s sleep before going back to work. In these cases, a person can show up to work unimpaired and able to perform their duties, but they would still have a positive drug test.

The ADA does not require employers to accommodate medicinal marijuana use, even when used at the recommendation of a doctor, because marijuana is still considered an illegal drug under federal law. 

On the other hand, some court rulings indicate that several states believe that employers have a right to accommodate employees who use medicinal marijuana outside of work. Rulings in Florida, Massachusetts, and New York have all ruled on the side of employees who were wrongfully terminated or punished in some way for using medical marijuana when off-site.

Because of all of these gray areas, it can be impossible to say what protections you may or may not have. Many employers have policies in place, but ultimately, they may consider accommodations on a case-by-case basis. Policies can get complicated, especially for companies that have locations in various states or near state borders with different laws about medicinal marijuana. Talking to your employer can be the best way to ensure you understand your workplace protections.

Things to keep in mind

Unfortunately, there are no straightforward answers about workplace protections for medicinal marijuana users. Navigating conflicting laws along with the policies of your employer can be challenging. Here are some things to keep in mind: 

• If you have a medical marijuana card, it does not automatically mean that your employer will accept it as a shield against repercussions for marijuana use. For example, as the federal government does not approve marijuana for medicinal use, you are still likely to face repercussions, including termination, if you have a positive drug test for a federal job, even if you live in a state where medical marijuana is legal. 
• Impairment can be grounds for termination, even if you live and work in a state where medicinal marijuana is legal. Showing up to work impaired can be grounds for termination or other disciplinary action, even if you have a valid medical reason for using. 
• Each state has different laws, and each workplace has different policies. Familiarize yourself with the laws in your state and gain a thorough understanding of the rules and protections in your workplace.
• Think carefully before disclosing medical marijuana use at work.
• Know that some jobs may be exempt from any protections for medical marijuana use, regardless of state law. For example, employers may not allow people who use medical marijuana to operate heavy machinery, irrespective of whether they only use it off-site.
• Don’t make assumptions about the policies that your company has in place regarding medicinal marijuana use. Read and understand any drug use and impairment policies so you know exactly what your employer expects and what protections you have, if any.

Questions to ask your employer

Once you have familiarized yourself with the laws in your state and have an understanding of your employer’s policies about medical marijuana use, you may still need some clarification. Here are some questions to ask your employer that can help you gain some clarity: 

• Does the company have a specific policy about medical marijuana use? 
• Does the company treat medicinal marijuana and recreational use differently? 
• Will using medicinal marijuana when I am off-site jeopardize my employment? 
• Does the company drug test employees who have medical marijuana cards? 
• Can I provide documentation in advance, like a medical marijuana card or a doctor’s note, to explain a positive drug test? 
• Is medical marijuana use kept confidential? 
• Who do I need to disclose my medical marijuana use to?
• Does the company make reasonable accommodations for medical marijuana use? 
• What accommodations or protections should I or should I not expect if I disclose medical marijuana use? 
• Does the company follow state or federal guidelines regarding marijuana use? 
• Has the company dealt with medical marijuana use before? 

You may want to consider taking your concerns to the human resources department rather than speaking to your direct supervisor. HR is likely to have a better understanding of the medical marijuana policies, and it may offer you some anonymity if you’re not ready to openly discuss this topic with your direct supervisor. 

FAQS

What does OSHA say about medical marijuana?

OSHA’s position on drug use in the workplace focuses on safety, specifically on providing a workplace that is safe from hazards that are likely to cause injury or death. The organization does not take an official stance on medicinal marijuana but focuses on impairment, specifically on the ability of employees to operate machinery safely. Some states and specific industries may have a zero-tolerance policy for marijuana use, but again, this depends on the state and individual company.

Can you be denied employment if you test positive for marijuana?

This is a complex topic, and unfortunately, it doesn’t have a straightforward answer. In states with robust medical marijuana programs, supplying the appropriate paperwork, like a medical marijuana card or a note from your doctor, may justify a drug test that comes back positive for marijuana use. That said, this varies significantly from state to state and from one company to the next.

What states offer medical marijuana protection for employees?

About half of the states offer some type of workplace protections for medical marijuana, including Arizona, Arkansas, California, Connecticut, Delaware, Illinois, Louisiana, Maine, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Utah, Virginia, and West Virginia. Specific protections vary from state to state, and some may be more robust than others.