Medical Duty To Accommodate
However, she was fired shortly after she started the job because her drug test came back positive for marijuana. The court held that an exception to the employer's drug policy to permit offsite marijuana use may be a reasonable accommodation where the employee's physician determines that marijuana is the most effective treatment for the employee's disability and that any alternative medication permitted by the employer's drug policy would be less effective. Removing Ambiguity To avoid such court battles, a growing number of states are writing employment protections into their marijuana legalization statutes. For example, Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Pennsylvania and West Virginia provide employment protections for medical marijuana patients. And a stalled 2018 bill would have provided similar protections in California. Such statutes prohibit discrimination against off-duty cannabis use or require employers to accommodate its use for medical reasons.
Medical duty to accommodate children
In an effort to inform employers about issues surrounding accommodation of medical marijuana, the Workers Compensation Board of P. E. I. held a session dedicated to the topic at its annual Workplace Health and Safety conference on Thursday. The Workers Compensation Board of P. held a workshop to explain what duties employers have when it comes to medical marijuana in the workplace. (Ron Ward/Canadian Press) The Workers Compensation Board of P. is starting to see more requests for coverage for medical marijuana. In an effort to inform employers about issues surrounding accommodation of medical marijuana, it held a session dedicated to the topic at its annual Workplace Health and Safety conference on Thursday. More requests The board's medical advisor, Dr. Hendrik Visser, said the WCB of P. is "seeing more requests as a board to cover medical marijuana. And we look at those on a case by case basis. " Though he said cases on P. are "still quite infrequent. " Employment lawyer Stuart Rudner was one of the presenters in a workshop about medical marijuana in the workplace.
Rudner said as with any request from an employee for accommodation, an employer should never reject "out of hand, " but instead ensure they have all the information they need to make a decision.
As I previously posted, medical marijuana has made Florida's 2016 ballot and is likely to pass muster this time around (in 2014 medical marijuana received 58% of the Florida vote, falling just short of the 60% necessary to pass). So, assuming that Florida employers will soon be faced with questions from medical marijuana using employees lets explore whether Florida employers will have a duty to accommodate such employees. Like with many new laws, litigation over the question will eventually give us a more certain answer. But, in the meantime, Florida employers can look to case law authority for similar medical marijuana laws in other states. First, lets start with the relevant Florida ballot language which provides: (6) Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place. This Florida ballot language is similar to language from the medical marijuana statutes of Alaska, California, Maryland, Massachusetts, New Mexico, etc.
(Sarah MacMillan/CBC) Visser presented during the WCB conference along with Stuart Rudner, an employment lawyer from Ontario. Rudner said as the use of medical marijuana becomes more frequent, it will be important for employers to know their responsibilities and how to handle requests for accommodation. 'Duty to accommodate' Rudner said many employers he's spoken with aren't informed about medical marijuana and their responsibility to accommodate. "Often when I tell employers they have to accommodate medical marijuana, their eyes widen, and they envision you know, basically people smoking up in the lunchroom. And it's very different than that, " said Rudner. You're never going to have to allow a truck driver to come to work while impaired. But you may have to accommodate them by adjusting their shifts, or giving them modified duties. - Stuart Rudner He explained that medical marijuana, and other prescription medication, "fall within the definition of disability, so there's a duty to accommodate. "
Noelle Sheehan is an attorney with Wilson Elser in Orlando, Fla. Quiz: How Do Marijuana Laws Affect the Workplace?
Notably, these statutes generally make exceptions for use by employees in certain safety-sensitive or federally regulated positions. Tips for Employers An employer's drug-testing and screening practices must comply with emerging laws in relevant states, even though all marijuana use is still illegal at the federal level. In states that cover medical marijuana patients under disability laws, employers should confirm whether positive drug tests are connected to medicinal use before making employment decisions. If a worker seeks an accommodation for medical use, employers can lean on traditional HR practices by ensuring that the employee has the appropriate medical certification and will refrain from on-duty use or otherwise not pose a risk in the workplace. Part three of this series will continue this discussion and consider whether employees' use of medical marijuana will negatively impact their workers' compensation or unemployment insurance claims. Dean Rocco is an attorney with Wilson Elser in Los Angeles.
This is the second in a three-part series of articles on cannabis laws and court opinions. Today's article discusses workplace accommodations for medical marijuana use. The first part reviews different rulings on federal pre-emption of state marijuana laws, and the third part focuses on how marijuana is treated under state workers' compensation and benefit programs. A majority of states now permit medical marijuana use, and federal law may not always pre-empt state laws when it comes to their impact on the employment relationship. As employees increasingly turn to cannabis as a treatment option for various health conditions, employers must examine whether their policies—which are no doubt aimed at maintaining safe and productive workplaces—violate their obligations under state disability-accommodation and leave laws. A Few Key Laws The Americans with Disabilities Act (ADA) and related state laws require employers to enter into discussions with workers with disabilities to determine if reasonable accommodations can be provided so such workers can perform the essential functions of their job.
In the New Mexico case, Rojerio Garcia, during his job interview, disclosed his serious medical condition, HIV/AIDS, and further disclosed that he treated his medical condition with medical marijuana. Mr. Garcia was hired and underwent a drug test which he subsequently failed. Accordingly, Tractor Supply, the employer, discharged Mr. Garcia on the basis of the failed drug test. Mr. Garcia filed suit and argued that New Mexico's Compassionate Use Act ("CUA"), which permits the use of marijuana for medical purposes should be considered in combination with New Mexico's Human Rights Act, which prohibits employers from discriminating on the basis of a serious medical condition. As such, Mr. Garcia argued that New Mexico employers must accommodate an employee's use of medical marijuana for a serious medical condition under the New Mexico Human Rights Act. The Court disagreed. It stated that, unlike a few other states whose medical marijuana laws impose an affirmative obligation on employers to accommodate medical marijuana use, New Mexico's law did not.
Consequently, Mr. Garcia did not have a claim under the CUA because the law did not provide a duty to accommodate. Florida's proposed medical marijuana law language is more akin to New Mexico and other states where there is no affirmative duty to accommodate medical marijuana use. As such, Florida employers should expect that enforcement of a non-discriminatory drug free policy will likely remain permissible but also complicated. Check back, as I'll be posting more on what Florida employers need to know about medical marijuana in the workplace. _____________ Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or.
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