Cannabis is going mainstream. Even former U.S. Speaker of the House of Representative John Boehner is getting into the action with Canadian firm Acreage Holdings.
Nonprofit managers have challenges developing guidelines on dealing with employees who are under the influence, are suspected of being under the influence or who might have indulged the previous night.
Marijuana is a Schedule 1 substance under federal law. Federal law pre-empts state law where a clear and positive conflict exists so that the two laws cannot co-exist, according to Melanie Herman, executive director of the Nonprofit Risk Management Center in Leesburg, Va.
However, many states have enacted laws that diverge from federal law without creating such a conflict. For instance, while federal law would prevent the use of marijuana for illegal purposes, states have been able to define and limit the legal purposes of marijuana, according to Herman.
Several states have passed laws to prohibit discrimination against employees solely on the basis that they use marijuana. Every employer must carefully balance two important priorities and interests: Ensuring appropriate policies and practices that create and support a safe workplace; and, Achieving compliance with myriad laws governing the employment relationship.
- Three of the many questions that arise with marijuana in the workplace include:
- Must an employer honor an employee’s request for leave or an accommodation related to cannabis treatment?
- May an employer terminate an employee — or disqualify a candidate — for using medical marijuana?
- Is an employee who was terminated for using marijuana eligible for unemployment benefits?
An Oregon court ruled in 2006 that an employee was not disabled under state law if his medical issues could be addressed with a prescription for medical marijuana. Because the employee wasn’t disabled under state law, there was no duty to provide an accommodation. (See Washburn v. Columbia Forest Products Inc.) New York has taken the opposite position, thus, the answer varies by state.
State court rulings have been inconsistent on the issue of termination, according to Herman. For example, a Massachusetts court recently held that permitting offsite marijuana use — an exception to the employer’s established drug policy — may be a reasonable accommodation for an employee whose physician prescribed marijuana as the most effective treatment for a disability. (See Barbuto vs. Advantage Sales and Marketing, LLC.) A Washington Court of Appeals found, however, that state law does not restrict an employer from terminating the employment of a staff member after discovering the employee’s use of medical marijuana.
Whether the terminated employee can get unemployment benefits also varies by state. In a recent Michigan case, an appellate court found that terminated employees who held medical marijuana cards were eligible for unemployment compensation benefits. (See Braska v. Challenge Manufacturing Company). In contrast, a Colorado appeals court ruled that a fired employee whose physician recommended, but did not prescribe, marijuana was ineligible for benefits.
To access a complete discussion of this complex issue, go to https://bit.ly/30n0qov