As blogged about recently, the District of Columbia passed legislation which, once approved by Congress, will prohibit employers from taking adverse action against employees who choose to use cannabis while off-duty. Not to be outdone, on August 30, 2022, California’s state legislature passed Assembly Bill 2188 which will protect workers who use cannabis off the clock. California’s bill is now headed to Governor Newsom’s desk for signature.
D.C. and California are part of a growing trend. States have begun enacting cannabis user protection laws in recent years.[1] Seventeen states currently provide employment protections for medical marijuana/cannabis users.[2] Recent legislation was proposed in Colorado, but was ultimately unsuccessful. Assuming both California and D.C.’s bills become law, we are fast approaching on a majority of states recognizing a discrimination protection that did not previously exist.
While cannabis anti-discrimination laws vary by locality, it is important for employers to know the overall theme is that states are moving towards protecting medical cannabis users, and in some cases where cannabis is legalized, employee’s recreational use. However, no state currently provides protections that would prevent an employer from prohibiting marijuana use while an employee is on duty. Additionally, most state laws provide that an employer need not accommodate marijuana use if the accommodation would:
- Create a situation of an unsafe work condition or otherwise create a safety hazard;
- Cause the employer to be in violation of federal law;
- Would result in a loss of a licensing-related benefit pursuant to federal law; or
- Would result in the loss of a federal contract or federal funding.
Employers must be vigilant and recognize that some states require accommodations for medical prescription use, which may apply to medical cannabis users. In any case, employers should follow best practices when working with employees who have a claim for protection under a state’s disability or anti-discrimination law when it comes to any medication. In brief, employers should:
- Engage in the interactive process to determine whether there is a reasonable accommodation that would address any medication concerns.
- Recognize the protected right employees have to use prescribed controlled substances and come to work, unless such use creates an undue risk of harm or presents a safety issue.
- Do not adopt a blanket drug-testing policy that fails to leave room for the interactive process.
- Adopt reasonable workplace policies that do not require employees to disclose prescription medication use unless required by federal contract or due to safety concerns.
- Consider refraining from prohibiting employee cannabis use as long as it does not interfere with performance expectations, safety, federal laws or regulations.
If you face a situation where an employee is claiming protection due to medical or recreational cannabis use, please reach out to Kollman & Saucier for advice on the law in your jurisdiction and advice on how to properly engage in the interactive process.
[1] Because marijuana remains illegal under federal law, employees are not afforded protections under the Americans with Disabilities Act. However, states may choose to create protections under state and local statutes.
[2] Arizona – Ariz. Rev. Stat. § 36-2813(B); Arkansas – Ark. Const. amend. 98, § 3(f)(3)(A); Connecticut – Conn. Gen. Stat. § 21a-408p(b)(3); Delaware – 16 Del. C. § 4905A; Illinois – 410 ILCS 130/40; Maine – 22 Me. Rev. Stat. § 2430-C(3); Massachusetts – Mass. Gen. Laws Ch. 151B, § 4(16); Minnesota – Minn. Stat. § 152.32(3)(c); Montana – Montana Code § 39-2-313; Nevada – Nev. Rev. Stat. Ann. § 678C.850; New Jersey – N.J. Stat. § 24:6I-6.1; New York – N.Y. Pub. Health § 3369(2); Oklahoma – 63 Okl. St. § 425(B); Pennsylvania – 35 P.S. § 10231.2103(b)(1); Rhode Island – R.I. Gen. Laws Section 21-28.6-4; Virginia – Va. Code Ann. § 40.1-27.4; West Virginia – W. Va. Code Ann. §§ 16A-5-10, 16A-15-4.