I’m going to make a prediction right now. In about a decade’s time, marijuana will be legal to use in the United States. I say that because we are nearing a tipping point in legalization.
By the end of the 2016 election cycle, more than half the states will likely have legalized marijuana in some way.
This presents a problem for employers who have a drug-free workplace. Some employers (i.e. defense contractors) are obligated by contract to have a drug-free workplace. And of course there are safety issues.
Still, I think the law on this is going to rapidly change over the next decade. What is an employers’ obligation to accommodate an employee using marijuana as medicine?
An employee of mine uses medical marijuana. Can I fire them for violating my drug-free workplace policy?
When marijuana was illegal, the answer was yes. But rapid changes in the legal status of marijuana as medicine makes the answer less clear.
Normally, you can fire an employee for being under the influence of drugs while at work.
But when the drugs are medications lawfully prescribed to them to treat a true medical condition, then such a firing may constitute disability discrimination.
For example, if someone uses insulin to control diabetes and this makes him or her act spacey, or be unsafe, you cannot fire them.
When marijuana is legally used to treat glaucoma, cancer or seizures, the employer may be required to accommodate the employee.
Employers also do not have the right to inquire about an employee’s health, medications or medical history, including at a hiring interview.
And in most cases, employers may not drug test current employees.
If you must keep a drug-free workplace by contract, you need legal advice to deal with such tricky situations.