ADA Accommodations

ADA Accommodation for Medical Marijuana

Learning Team C

MGT/434

July 23, 2017

Instructor, Charlie Burr

Introduction

There are now 29 states in the United States, plus the District of Columbia that have legalized the used of medical marijuana. In 2010, the state of Arizona proposition 203, was placed on the ballot for the legalization of medical marijuana. The vote was 50.3%, which placed it into law. http://www.azdhs.gov/licensing/medical-marijuana (Medical Marijuana).

Employees and prospective employees are required to obtain and carry a medical marijuana identification card. These employees is considered disabled under the Americans with Disabilities Act (ADA) or similar state statutes and/or has a serious health condition under the Family and Medical Leave Act. (Marijuana in the Workplace: A Hazy Issue for Employers)

While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability (for example, glaucoma), and affords certain protections to employees and applicants with disabilities, such as the confidentiality of medical information. Now is the time for employers to amend its drug and alcohol policies. As long as the employee disclosures and provides documentation of medical marijuana use, they are protected under the ADA.

Perhaps the worker also could be moved to a position that is less sensitive to its effects. Finally, the employer could grant the worker a leave during the time she or he requires use of the drug. If an employer suspects impairment that could make the worker unqualified for the position, the worker can be tested based on that reasonable suspicion (such as slurred speech, attitude, involvement in an accident, or odor). (Bennett-Alexander & Hartman, 2014, Chapter 13, pg. 634)

Bullet 1/Evaluate whether or not the company has a valid defense.

Support your position using federal or state laws or statutes, and include any legal cases on the matter.

Bullet 2/ Valid Defense

Reasonable Accommodation Appropriate or Inappropriate

According to the Americans with Disabilities Act of 1990, discriminating against an individual that is qualified to fill the position due to a disability is prohibited in the following circumstances; the job application and interview process, the hiring of said individual, raises or advancement in career, the termination of employees, the compensation for employees, any training that is related to employment, and or any other terms, conditions, and privileges of employment (Bennett-Alexander & Hartman, 2014, Chapter 13, pg. 585). Since medical marijuana is qualified as a protected class under this act, the women in Arizona is entitled to a reasonable accommodation. A reasonable accommodation is that the disability of one individual does not place a hardship or undue burden (courts use the language interchangeably) on their employer (Bennett-Alexander & Hartman, 2014, Chapter 13, pg. 605). With that being said, the simple fact that the lady explained to her employer before they hired her that she had a state’s voter-approved medical marijuana law and had a registration card for verification and they still hired here then. The accommodation that should be made is the employee should still be drug tested randomly but due to her medical marijuana being certified by her physician and her being see as and protected class they should only look for other drugs in her system and overlook her positive result in marijuana. As long as the employee is not using during business hours, it should hold up to the “zero tolerance” zone. Per her information provided it was only used before work and before she went to bed for a sleep aid. By no means necessary was it affecting her work ethics, she just so happened to be randomly picked for a drug test by her employer.

Bullet 3/Analyze State and Federal Laws

Due to its high potential for abuse and dependency and its lack of currently accepted medical value, marijuana is classified as a Schedule 1 Controlled Substance according to the Control Substance Act of 1970. It is still considered to be a federal crime to possess, grow, or distribute marijuana and with these things come the potential of jail time. The distribution and or growing of marijuana on a larger scale still tends to be a main focus of the DEA ("Medical Marijuana And Federal Law", 2017).  Marijuana is still slated to be recognized as a Schedule 1 substance under the CSA and the states that begin to lessen the laws when it comes to medical marijuana or begin to legalize recreational use of it remain outside of federal law.  ("Marijuana To Remain Illegal Under Federal Law, Dea Says", 2017). 

Employers are prohibited from discriminating against employees for their use of medical marijuana due to certain statues in some states. Thus, in those states, employers are advised to limit adverse actions against an employee who tests positive for medical marijuana unless the employee was visually impaired on premises or during working hours or the employer would lose a federal grant or other benefit under federal law. ("Top Ten Considerations for Employers in States with Medical Or Otherwise Legal Marijuana", 2017). 

Whether the employer may lawfully terminate the employee under state law depends on the state where the employee works. According "Top Ten Considerations for Employers in States with Medical or Otherwise Legal Marijuana" (2017), Employers should review state laws on medical and recreational marijuana use and ensure their policies are consistent with those laws. Employers also should continue to comply with federal laws and regulations on drug testing. Employers' policies on drug use and testing should set forth expectations such as prohibiting use and/or possession at work, prohibiting controlled substances that interfere with performance or pose a danger to the employee or others, prohibiting impairment, specifically spelling out the policy on medical and recreational marijuana, and making clear the circumstances in which an employee will be terminated.

Bullet/4Cite a minimum of two federal laws and one state law in addition to other sources that apply to this case study, and be sure to cite them correctly in the body of your paper as well as the References page.

Bullet 5/ Conflict Resolution

Conclusion

References

Bennett-Alexander, D., & Hartman, L. (2014). Employment law for business (8th ed.). Boston, MA: McGraw-Hill.

Medical Marijuana and Federal Law. (2017). Retrieved from http://www.criminaldefenselawyer.com/resources/criminal-defense/federal-crime/medical-marijuana-federal-laws.htm

Marijuana to remain illegal under federal law, DEA says. (2017). Retrieved from https://www.usatoday.com/story/news/2016/08/11/dea-marijuana-remains-illegal-under-federal-law/88550804/

Top Ten Considerations for Employers in States with Medical or Otherwise Legal Marijuana. (2017). Retrieved from http://www.acc.com/legalresources/publications/topten/states-with-medical-or-otherwise-legal-marijuana.cfm

Medical Marijuana http://www.azdhs.gov/licensing/medical-marijuana

Marijuana in the Workplace: A Hazy Issue for Employers. Retrieved from https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/marijuana-hazy-issue.aspx