Is it possible to craft a medical marijuana policy that keeps everyone safe yet is non-discriminatory? This is a central concern for employers as more and more states allow legal medical marijuana use. Employers want to keep a safe working environment, free from concerns of impaired individuals in safety-sensitive positions. However, where is the line drawn when the impairing substance is not only legal but also prescribed? What are the risks of running afoul of the Americans with Disabilities Act (ADA)?
Medical Marijuana: How is the ADA Involved?
It might seem odd to talk about the ADA in relation to medical marijuana, but the two are more closely related that it may seem. This is because medical marijuana users are likely members of a protected class—not because they are a marijuana user, but because such use is probably necessitated by an underlying condition that qualifies as a disability.
This is why employers must be careful when creating medical marijuana policies to protect the workplace. Even with the best of intentions, it can be easy to create a situation where a disabled employee is facing discrimination.
Medical Marijuana Policy: Related to Safety?
Employers have a duty to ensure that the working environment is safe. This includes ensuring that no employee is putting others at risk. That risk could come from many sources, and employee use of impairing substances is one such risk factor. Many substances fall under this definition; marijuana is just one of the many.
What can employers do to protect themselves, their employees, and the public with regard to medical marijuana users in the workforce? How can safety be maintained without singling-out medical marijuana users?
“The best thing that employers can do is focus on safety-sensitive positions.” Dinita James explained in a recent BLR webinar. Keep the focus on safety, not the drug in question. You have a duty as an employer to ensure that employees who are in safety-sensitive positions are not impaired. “Employers can protect the workplace itself. No state law – including those 4 states that have employment protections [for medical marijuana users] – require employers to allow marijuana use or impairment on the job.” James told us.