Almost a majority of the states now allow medical marijuana, so questions are starting to pop up about how the use of medical marijuana affects an employee’s rights (and an employer’s responses) under other laws, and in particular, the Family Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”).

The FMLA allows qualified employees up to 12 weeks of unpaid leave for their own health condition or to care for a qualifying family member.  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, remember under federal law marijuana use remains illegal throughout the United States, even in those states where its use is legal under state law.

FMLA Quandary

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 any chronic medical condition. The definition of a serious medical condition also includes any condition which incapacitates a person from work for over 3 consecutive days if they also need to see the medical provider twice for treatment, e.g., a bad cold. In other words, if I meet those qualifications, I can likely 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 that arise from this set of facts. 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, say at 1:00 p.m., 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 he only wanted to take two hours off to light up, could that employee then return to work at 3:00 p.m.? Not likely. The employee would likely be impaired and an employer does not have to allow an impaired employee to work. Indeed, the employer could require a fitness for duty examination before taking the employee back to work.

What if the employer has a “zero tolerance” drug free workplace policy? Does the employer have to take the employee back when he/she tests positive for marijuana use after an 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 use is still illegal under federal law. In other words, even if the employee is not high or impaired, if he/she tests positive for recent marijuana use, the employer likely could terminate the employee for failing to comply with that 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 (interference and retaliation) are illegal under the FMLA, and the employee could be awarded damages, attorney fees, and reinstatement.

ADA – Drug Use Can’t Really Be Covered As A Disability – Can It???

And what about the ADA and marijuana use? Well the ADA 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. 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 the use of medical marijuana when prescribed by a licensed health care professional, i.e., 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 be 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.

So, we reach the classis lawyer answer – it’s depends! What we’re left with is — 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, by 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 employees behave 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 that far-fetched to realize that some court will find that the ADA gives some protection to medical marijuana users in states where the use is legal.

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.  (For example, see the DOL’s link to State FMLA laws.)

It may well be that a state’s ADA or FMLA statute gives 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.