Your Employee Tells You He's Using Medicinal Marijuana - Now What?

[Katelyn Baker]

Since the passage of the Medical Marijuana Act ("MMA"), we have received many questions from employers regarding the MMA's impact on employment law; one of the most frequent questions being — what do I do if an employee tells me he/she is using medical marijuana? While the answer to this question will partly depend on state regulations that have yet to be issued, for now there are a few things that employers should know and do when confronted with an employee who is using medicinal marijuana:

1. Recognize that only "certified users" are legally permitted to use medicinal marijuana in Pennsylvania. Only individuals who are "certified" under the MMA are authorized to use medical marijuana in Pennsylvania. Because the regulatory framework to implement the certification process has not been implemented, there presently is no mechanism for individuals in Pennsylvania to become "certified." Until the regulatory framework is in place and certifications are being issued, any employee who reports that he is using medical marijuana is likely violating the law. Until a certification is issued, the employee is not entitled to the protections contained in the MMA, such as the anti-discrimination provision at §2103(b)(1), which we discussed here.
   
2. Understand that the MMA does not require employers to accommodate the use of medical marijuana while the employee is at work. The MMA specifically provides "nothing in this Act shall require an employer to make an accommodation for the use of medical marijuana on the property or premises of any place of employment." §2103(b)(2). For this reason, it appears employers may implement and/or continue to enforce policies that prevent marijuana use at work or on the employer's premises, regardless of whether the use is certified under the MMA.
   
3. Analyze the employee's situation in accordance with the ADA. Under current interpretations of the law, it appears that the ADA does not prohibit an employer from discharging an employee who tests positive for marijuana, even if the use was prescribed by a doctor. However, the employee who voluntarily discloses medical marijuana use, because the employee has a disability, may be entitled to protection under the ADA. Accordingly, an employer should engage in an interactive process with the employee to determine whether accommodations are warranted. While we strongly recommend that employers seek guidance from counsel in these situations, the following general steps should be followed in all situations:

• Ask the employee, in writing, to obtain a letter or report from his/her health care provider identifying the condition for which the medicinal marijuana has been prescribed and how, if at all, the employee's use of medicinal marijuana will impact or impair the employee's ability to perform his/her job. Providing a copy of the employee's job description to the health care provider is a best practice.
• To the extent the employee's ability to perform his/her job is impacted by the use of medicinal marijuana, assess whether the employee can perform the essential functions of the job with or without reasonable accommodation. Remember, this is a fact-specific inquiry that should be conducted on a case-by-case basis. For example, if you would normally provide medical leave to an employee temporarily prohibited from performing his job due to the use of prescription drugs, you may be required to do the same for an employee with a prescription for medicinal marijuana.
• To the extent an employee's ability to perform his/her job is not impacted by the use of medicinal marijuana, remind the employee that reporting to work "under the influence" and the use of marijuana at work or on the employer's premises are strictly prohibited.

Continue communicating with your employee to fulfill your obligations to interact under the ADA.

As the Pennsylvania Department of Health begins to implement temporary regulations, we will keep you apprised of further developments.

News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: Your Employee Tells You He's Using Medicinal Marijuana - Now What?
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