Clearing the Smoke on Medical Marijuana Users in the WorkplaceExpressO (2011)
AbstractMedical marijuana users are protected against criminal prosecution in 15 states, yet their protection as employees is much less certain. Courts in several states with medical marijuana statutes have refused to provide protection for medical marijuana-using employees, even where the use has had no effect on their performance. Yet these decisions may not control the rights of medical marijuana users in other states where the statutory wording differs. Employers looking for guidance should consider the protections of the Americans with Disabilities Act (ADA) and state disability nondiscrimination statutes. Many medical marijuana users may qualify for protection as persons with disabilities, or their employer may be regarding them as disabled, yet a disparate treatment claim may not arise under the ADA because marijuana use is still illegal under federal law. However, medical marijuana users may still succeed with a claim of disparate impact or inappropriate medical examination under the ADA. In addition, state disability protections may provide medical marijuana users with protection against disparate treatment and the right to accommodations. In analyzing such claims, employers should conduct an individualized analysis of the effects of the marijuana usage on the ability of the person’s ability to perform their job duties, based on a legitimate medical opinion, rather than assuming that any medical marijuana user is unfit for work.
- employment discrimination,
- medical marijuana
Publication DateMarch 2, 2011
Citation InformationStacy A. Hickox. "Clearing the Smoke on Medical Marijuana Users in the Workplace" ExpressO (2011)
Available at: http://works.bepress.com/stacy_hickox/6/