Advice for Employers Hiring Medical Marijuana Users

According to Todd Wulffson, an attorney who defends numerous employers dealing with employees wanting to use medical marijuana on the job, there are four scenarios in the employer-employee relationship that could lead to lawsuits.

Wulffson has some advice for employers dealing with these certain scenarios:

1. If an employee or an applicant asks the employer if the employer would “accommodate my use of medical marijuana,” Wulffson says, “you have to accommodate the underlying disability of the medical condition.” But he adds that the employer does not have to let the employee become drugged while working. He advises the manager to tell the employee to visit the HR department, which should tell the employee that the use of medical marijuana is okay and discuss company policy. The employee should be clear about his/her condition and the reasons that necessitate the drug use
2. If an employee has a serious disease, and says he/she will do a less strenuous job until the effects of the drug wear off, the best avenue for the employer to avoid such confrontations is to have a zero-tolerance policy for drug use at work.
3. If an employee needing medical marijuana approaches the employer and says he/she is going to smoke, but hasn’t done so yet, the employer should make a statement akin to this: “We will reasonably accommodate your condition, but we cannot allow you to be under the influence while on the clock—it’s too risky for the company. You can go home for the rest of the day and come back tomorrow.”
4. If an employer finds out from an employee that a prospective employee was smoking pot and warns the employer, the prospective employee could claim that he/she wasn’t fired because of a perceived disability and/or because the employer simply does not want to accommodate them.

Medical marijuana is now legal in 23 states, and 86 percent of Americans support its use. The Senate is considering making medical marijuana legal across the nation.

In December, the Rhode Island chapter of the American Civil Liberties Union filed suit for an applicant for an internship alleging that she was denied the job when she revealed she used medical marijuana. In May of 2014, an employee of NJ Transit filed suit, claiming he used medical marijuana for nerve pain in his legs, but when he took a drug test and tested positive for marijuana, he was suspended from work.