Medical Marijuana and its Effects on ADA & FMLA

Posted May 27, 2016 by Megan DiMartino in Uncategorized | 0 comments

Senior Gent with MedsThe legalization of medical marijuana has passed in a majority of the states, so how does that affect the rights under other laws such as the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA)?

While these two laws give employees certain rights, you 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.

So what about those using marijuana for a medical condition in a state where it is legal? Leave is allowed under FMLA for absences due to treatment of any serious medical condition, which includes any chronic condition. It also allows leave for any serious medical condition which incapacitates a person from work for over 3 consecutive days if they also need to see a medical provider twice for treatment. Using medical marijuana during this time is irrelevant. Also, if your condition requires you to take time off to take medical marijuana, that time off would be covered by FMLA.

But an issue that arises with that is employers with a zero tolerance drug policy. Generally, an employer can enforce its drug free workplace against off duty marijuana use, because as already stated, marijuana use is still illegal under federal law. So, even if an employee is not high or impaired, if they test positive for recent marijuana use, the employer could terminate under their zero tolerance drug use policy. But the employee could argue that the termination was in retaliation for their use of FMLA, or an attempt to interfere with their FMLA use.

Now for ADA policies. The ADA currently states that a person using illegal drugs is not a qualified individual with a disability and thus is not protected by the ADA. Also, testing for illegal drugs is not considered a medical examination, so the ADA does not restrict when an employer can test for illegal drug use. 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 while medical marijuana can be prescribed legally under some state laws, it is still considered illegal under the Federal Controlled Substances Act.

And to top it all off, many states have their own “mini” ADA and FMLA statues which are not always identical to the federal ADA and FMLA laws. State ADA and FMLA laws could give further protection to medical marijuana users since the state law may not refer to the Federal Control Substances Act.

Courts are only starting to delve into this, so medical marijuana users are not out of the woods yet! And employers need to assess their risk before acting as the ADA and FMLA may extend some protection to those users.

Source: Seyfarth Shaw – The Blunt Truth | ADA, FMLA and Medical Marijuana, How Do They Mix?

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

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