Employers, Do You Need To Accommodate An Employee's Use of Medical Marijuana?
Maybe. But maybe the question is not whether you need to but whether you should, given the way the judicial winds have been blowing.
We have long been blogging about the Americans with Disabilities Act’s (“ADA”) requirements that employers (with more than 15 employees) must provide a reasonable accommodation to a qualified employee with a “disability” within the meaning of the ADA (it’s a broadly interpreted term) that substantially limits one or more major life activity(ies) or has a record of a disability.
Always important to note, the ADA only protects employees who are “qualified,” meaning that the employee possesses the skill, experience, and education to perform the essential functions of the job with or without any reasonable accommodation.
Remember that a reasonable accommodation is a change in the way duties are performed to help a disabled employee perform the job’s duties or enjoy the benefits and privileges of employment. The ADA requires employers to provide reasonable accommodations to an employee unless such accommodation(s) would pose an undue hardship, i.e., major difficulty or expense based on the employer’s resources and circumstances or those that would completely change the operation of the business.
Why am I giving you an ADA 101 Lesson? I’ll tell you.
More and more states are legalizing medical marijuana. However, with one extremely narrow exception, medical marijuana use is not protected under the ADA, as the ADA does not protect illegal drug use and marijuana remains illegal under federal law.
Wait, what? OK, then, you may think. Case closed. I don’t even need to think about reasonable accommodations for employees certified to use medical marijuana, right?
A few recent case rulings based on state disability laws, which appears to be a growing trend, should make employers think otherwise.
The Underlying Disability Is Key
As I told