Are You at Risk of Losing Your Job over Medical Marijuana Use?

Medical MarijuanaDuring the last few years, there have been a number of legal changes that affect the work environment. The Equality Act, enacted in 2010, is one of the changes that you should be aware of because it may apply to you, or a loved one.

The Protection Provided by the Equality Act

The Equality Act replaces the 1995 Disability Discrimination Act and the 1976 Race Relations Act. This new law ensures that current employees, contract workers and job applicants cannot be discriminated against by employers. This protection means that your employer cannot treat you any differently than any of the other employees.

The Need for Communication

Most people don’t look forward to discussing medical and physical disabilities with an employer. You may feel it sets you apart because you’re different. Keep in mind that your employer has the responsibility to make reasonable workplace adjustments so you’re not at a disadvantage. Examples of adjustments include:

* flexible work hours
* supplying special equipment and modified work space
* equal training and promotion opportunities

If you don’t share details with your employer and you run into unfavorable treatment, it’s that much harder to solve the problem, or to file a formal complaint. In the event of a complaint, it’s quite likely that the employer’s position will be that they were never informed that you have a physical or mental disability.

Current Medical Trending Highlights

One of the latest medical treatment trends is the use of medical marijuana legally prescribed and supervised by a physician. As of year end 2013, 20 states including Arizona, Colorado, Hawaii, Illinois, and D.C., among others, have passed laws that permit the use of medical marijuana treatment. With the exception of Oregon and Illinois, all of the states require proof of residency prior to medical marijuana treatment.

An employer’s decision to hire, fire, or promote should never be based on drug prescriptions, disabilities, perceived disabilities, or disabilities that can only be determined by prescription use.

One complicating factor is that federal laws do not recognize the use of medical marijuana regardless of state laws. Even though Hawaii permits medical marijuana use, under federate laws, it’s illegal.

There have been cases involving people with disabilities and prescription drug use who were fired for using prescription drugs. In two of the most recent cases, located in Tennessee and Georgia, the court ruling shows a clear violation by the employers who ran tests for drug use, and then fired the employees based on legal prescription drug use.

What’s the final determination?

In states with laws that permit the use of medical marijuana for employees with legal prescriptions, there’s an issue as to whether they’re protected from losing their jobs. According to the ADA, they are not protected.

The ADA has taken a position based on federal law that illegal drug use is not a disability regardless of state medical marijuana laws, even with supervision. This position gives a green light for employers to fire an employee for medical marijuana use.

There are Exceptions

Going to the heart of the matter, we need to determine the real reason a person is fired.

As an example, if the employer has a policy of treating all employees who use marijuana the same, one employee using marijuana for a disability offers no protection against being fired.

On the flip side if an employer does not take any action against employees who are recreational marijuana users, firing an employee who is under extensive and expensive medical treatment that includes marijuana for pain control would be an illegal employment firing decision.

If you find yourself in this position with signs that your job is at risk, please contact us with your questions.

Photo Credit: “Caveman Chuck” Coker cc

Posted in Employment Law

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