Reasonable Accommodation for What??
Although there are many arguments supporting medical use of marijuana, the problem for employers is the impact on safety in the workplace and the risk of violating federal law, which still lists marijuana as illegal. So what happens when an employee with a disability comes to you and requests a “reasonable accommodation” and that accommodation is using medicinal marijuana? Must you as the employer allow that?
The answer is no. The employer is not required to do that, regardless of whether the employee has a medical marijuana prescription. Active marijuana users, including patients with medical marijuana prescriptions, are “current” drug users under the Americans with Disabilities Act (“ADA”), just like any other drug user. Therefore, they are not “qualified individuals with disabilities” under the ADA and are not entitled to reasonable accommodations. See 42 U.S.C. § 12112(b)(5)(A), 29 C.F.R. § 1630.3(b). Employers are not required to accommodate the current use of an illegal drug.
What about under Maine’s discrimination law, the Maine Human Rights Act (“MHRA”)? The answer is also no. An employer cannot be forced to permit an employee to use medicinal marijuana while on the job. Whoa…….wait………what about using on personal time and then coming to work?
Despite the wide variation in the scope of medical marijuana statutes in different states, there are consistencies among many states’ marijuana laws, including that employers need not accommodate marijuana use in any workplace, even if (a) the employee has a medical marijuana prescription; or (b) the employer’s place of business is in a state that has legalized marijuana for recreational purposes. In addition, generally employers may take adverse employment actions against employees who use or are under the influence of marijuana at work – similar to alcohol. Maine’s marijuana laws do prohibit discrimination against someone who uses medical marijuana solely – solely – because they use it. This is the language of the law:
- School, employer or landlord may not discriminate. A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person solely for that person’s status as a qualifying patient or a primary caregiver unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding. This subsection does not prohibit a restriction on the administration or cultivation of marijuana on premises when that administration or cultivation would be inconsistent with the general use of the premises. A landlord or business owner may prohibit the smoking of marijuana for medical purposes on the premises of the landlord or business if the landlord or business owner prohibits all smoking on the premises and posts notice to that effect on the premises. 22 M.R.S. §2423-E(2)
But Maine law also specifies that an employer does not have to allow an employee to use on the job or come to work under the influence:
- Employment policies. This chapter may not be construed to require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace. This chapter does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace. 7 M.R.S. § 2454
However………Maine employers may need to provide the accommodation of allowing an employee to use medical marijuana on their own time as long as they don’t come to work under the influence. Even if not required under federal law (the ADA), there is an argument that Maine law may require that. This situation would come up if the employee came and asked for permission and/or failed a drug test. As with most requests for accommodation, take good notes on what is being requested and take time to consider it. Don’t answer on the spot.
What may help employers in this situation is a recent case issued by Maine’s highest court, the Maine Law Court. In that case, the employer had been ordered to pay the workers’ compensation costs of an employee’s medical marijuana use. The Court held that the employer could not be forced to pay for a drug that was illegal under federal law. The Court pointed out that helping an employee pay for an illegal drug would meet the definition of criminal aiding and abetting: by paying, the employer would be knowingly choosing to aid in the commission of a crime. The case being discussed here is: Bourgoin v. Twin Rivers. If you would like a copy of the opinion, just email email@example.com.
Although the exact issue the Court was discussing was forcing an employer to pay for the cost of marijuana, it came to its conclusion by referring to positively, and relying on, several other cases, at least two of which held that an employer cannot be forced to accommodate marijuana use. In one case, an employee failed a drug test and was terminated and then sued for discrimination. In the other, an Oregon court stated that an employer cannot be forced to accommodate “what federal law specifically prohibits.” Oregon, like Maine, had a law permitting medical marijuana. But the court there decided that federal law trumped state law and, in any case, an employer can’t be forced to do what federal law does not allow. So another part of the Bourgoin v. Twin Rivers case was that, in a conflict between the federal Controlled Substances Act and the state marijuana law, federal law decided the outcome. As a result, much of the language in the Bourgoin v. Twin Rivers opinion would support a Maine employer saying no to an employee using medical marijuana on their own time if the employee asked for an accommodation allowing that to continue.
If that is the position you want to take regarding marijuana, just make sure to enforce any rules the same across the boards. And make sure employees get a heads up on the policy. Surprised employees are more risky employees.
Tip for the day: consider modifying your policies to permit “the use of drugs that can be legally prescribed under both federal and state law” rather than permit the use of “legally prescribed” drugs. If it just says “legally prescribed,” that technically allows marijuana use under state law even though use is not legally prescribed under federal law. Also, add “marijuana, even if prescribed under a state medical marijuana law, remains illegal under federal law and the employer’s policy.”
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Rebecca S. Webber, Bryan M. Dench, Amy Dieterich , James F. Pross and Jordan Payne Hay, are employment and labor law attorneys; others at the firm handle business and other matters. You can contact us at 207.784.3200. Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.