Jackie Gallagher, shareholder in the firm's Labor & Employment section, will present "Navigating the Weeds of Medical Marijuana in the Workplace" at the Northeast PA Manufacturers & Employers Association's HR Schuylkill Roundtable on August 29. Jackie will discuss employer obligations under Pennsylvania’s Medical Marijuana statute, best practices for drug testing policies and tips on navigating the interactive process when an employee uses medical marijuana
Societal attitude towards marijuana have changed significantly over the last 10 years. To date, 33 states have enacted medical marijuana legislation and at least 10 states have decriminalized recreational marijuana. Despite the changing societal views about marijuana, it is still an illegal controlled substance under the federal Controlled Substances Act. Consequently, users of medical marijuana are not entitled to the protections of other federal statutes; including, but not limited to, the American with Disabilities Act and the Genetic Information Nondiscrimination Act. Although the use of medical marijuana is not a “reasonable accommodation” under the ADA, an employer needs to be mindful of the ADA and GINA as the employee’s underlying condition may be protected by the ADA and GINA, even if the employee’s preferred method of treatment, medical marijuana, is not.
While the use of medical marijuana is not protected under federal statutes, many of the state medical marijuana statutes include anti-discrimination and accommodation provisions. So, in addition to analyzing the underlying condition, employers must also consider the unique medical marijuana statutory scheme in the state in which it operates. Despite variations in the statutory language in each jurisdiction, some common themes are emerging through case law, including an employer’s obligation to engage in the interactive process to determine if an employee’s use of medical marijuana is a reasonable accommodation under each state’s disability law.