By Lawrence P. Postol
Almost a majority of the states allow medical marijuana, so a common question is how does the use of medical marijuana affect the rights under other laws, and in particular, the Family Medical Leave Act and the Americans With Disabilities Act?
The FMLA allows employees who have been employed for at least one year with their employer, and worked 1250 hours in the last year for that employer, to take up to 12 weeks of unpaid leave, provided they work at a location where there are at least 50 employees within 75 miles of the location.
The 12 weeks can be for family leave — birth or adoption of a child, or medical leave — if the employee is sick or they need to care for certain sick family members. The ADA prohibits employers from discriminating against those who are disabled, and those associated with a disabled person. In addition, the ADA requires employers to provide reasonable accommodations to the disabled employee so the employee can perform the essential duties of their job.
While these two laws give employees certain rights, one must also remember that marijuana use is illegal throughout the United States under federal law, even in those states where its use is legal under state law.
Using medical marijuana while on FMLA is “irrelevant”
So what if I am taking marijuana for a medical condition in a state where under state law my use is legal? What rights do I have under the FMLA and the ADA?
Under the FMLA, leave is allowed for absences due to treatment of any serious medical condition, which includes essentially includes any chronic medical condition. The definition of a serious medical condition also includes any condition which incapacitates a person from work for over three (3) consecutive days if they also need to see the medical provider twice for treatment, e.g. a bad cold.
Thus, if I have any medical condition which is either chronic or a incapacities me for over three consecutive days and requires two treatments,I can obtain FMLA leave.
The fact that I might be using medical marijuana during my FMLA time off is irrelevant. Indeed, if my condition requires me to take time off from work to use medical marijuana, that time off would also be covered by the FMLA.
One can only imagine the possibilities:
So, let’s say I have depression, and my psychiatrist has prescribed me to use medical marijuana as a treatment in a state where it is legal to do so. If the doctor directs that I use medical marijuana in the afternoon at, say 1 pm, then I could take half the day off (unpaid of course) as FMLA time off.
Now someone will try to be clever and say, what if I only wanted to take two (2) hours off to light up, could I then return to work at 3 pm? Not likely. The employee would likely be impaired and the employer does not have to work an impaired employee. Indeed, the employer could require a fitness for duty examination before taking the employee back to work.
The impact of zero tolerance drug policies
What if the employer has a zero tolerance drug policy? Must the employer take the employee back when he/she tests positive for marijuana use after a FMLA covered absence to smoke marijuana as a medical treatment?
Generally, an employer can enforce its drug free workplace against off duty marijuana use, because marijuana is still illegal under federal law. Thus, even if the employee is not high or impaired, if he/she tests positive for recent marijuana use, the employer likely could terminate the employer under the employer’s zero tolerance drug use policy.
However, the employer’s actions would not be risk free. The employee could argue that the job termination was in retaliation for his taking FMLA leave, or an attempt to interfere with his/her use of FMLA leave. If a judge or jury believed that was the employer’s true motivation, those actions are illegal under the Family Medical Leave Act, and the employee could be awarded damages, attorney fees, and reinstatement.
And what about the ADA and marijuana use? Well, the Americans With Disabilities Act provides that a person currently using illegal drugs is not a qualified individual with a disability and thus is not protected by the ADA. In addition, testing for illegal drug use is not considered a medical examination, so the ADA does not restrict when an employer can test for the use of illegal drugs.
Marijuana and the ADA questions get trickier
However, a question does arise when the state law allows the use of medical marijuana. Under the ADA, illegal drug use does NOT include use of drugs “taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal law.” So does that exclusion include use of medical marijuana when prescribed by a licensed health care professional, ie. when a doctor prescribes medical marijuana when he is allowed to under his/her state law?
The reading of the ADA wording above at first glance would seem to indicate the answer is yes, that if a doctor prescribed the marijuana use then it is excluded from the definition of illegal drug use. However, the word “other” makes the answer less clear, since it appears that Congress assumed that any prescription for a drug would also legal under the Controlled Substances Act.
While medical marijuana can be prescribed under some state laws, it is still probably illegal to do so under the Controlled Substances Act. When Congress enacted the ADA in 1990, no one had heard of medical marijuana, or at least Congress clearly was not thinking of it. Thus, Congress’ intent is not exactly crystal clear.
Thus, we are left with at least the possibility that a medical marijuana user whose use is legal under state law, and is prescribed by a medical provider, might not lose his ADA protection. If that is so, and the medical marijuana use is to treat an ADA-covered disability (which definition includes most chronic conditions), then that opens lots of possibilities.
For example, the ADA requires as a possible accommodation that employer policies be modified or exceptions allowed. Would that include an employer’s drug free workplace policy? Probably not, since the ADA explicitly states that employers can require that employee’s behalf in conformity with the Drug-Free Workplace Act. However, the courts are only starting to deal with this can of worms, and it is not impossible that a court will find that the ADA gives some protection to medical marijuana users in states where the use is legal.
States have “mini” ADA and FMLA laws too
As if this is not complicated enough, many states have their own “mini” ADA and FMLA statutes, which largely copy the federal statues, but they are not always identical to the federal ADA and FMLA laws. It may well be that a state ADA or FMLA statute give further protection to a medical marijuana user, since the state law may not refer to federal Control Substances Act.
Medical marijuana users should not jump for joy, because it is less than clear that they have any significant protection under the ADA or FMLA. Conversely, employers need to assess their risk before acting, because it might well be that the ADA and FMLA do extend some protection to medical marijuana users.
Lawrence Postol is a partner in the Washington, D.C. office of the international law firm of Seyfarth Shaw LLP with offices in Atlanta, Boston, Chicago, Houston, Los Angeles, New York, Sacramento, San Francisco, Washington, DC, Australia, London and Shanghai. He can be reached at [email protected].
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