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What New Medical Marijuana Regulations Mean for Business Owners

Christine Batten, PHR
by Christine Batten, PHR on January 27, 2017

medical-marijuana.jpgFlorida and 28 other states, as well as the District of Columbia now consider medical marijuana legal. The new medical marijuana regulations could have an effect on business owners, but there is nothing major you should be concerned about. As it stands, employers do not need to allow any sort of medical marijuana use as an accommodation to their employees. There may however be a time when the issue comes up, and some other sort of accommodation or leave may be required.

If your company has a zero-tolerance drug policy, you should make sure to communicate with current and future employees that any marijuana use, whether it be legal or off-duty, could get them fired.

Discrimination Concerns

Some employers in states where medical marijuana has been legal for some time know new medical marijuana regulations lead to many questions. For example, would an employee with a “debilitating medical condition” be able to use medical marijuana on his or her break? After all, employers want to make sure they’re not violating the Americans with Disabilities Act.

The wording of Florida’s amendment does not require any accommodation for on-site use of medical marijuana in any workplace. So, the short answer is no, employers in Florida do not have to allow employees to consume medical marijuana on campus.

Here’s a better explanation of why: The ADA states a person currently using illegal drugs is not a qualified individual with a disability and, therefore, not protected under the ADA. So, even though marijuana is legal for medicinal purposes in Florida, it’s still illegal under federal law — thus technically illegal under the ADA.

This rule should also protect employers from discrimination claims so long as the adverse action is the marijuana use and not because of an underlying disability. At some point, employers may be required to accommodate an employee’s off-duty medical marijuana use. This issue is expected to come before the courts in the near future.

Zero-Tolerance Drug Policy

Accommodating an employee’s off-site drug use will be difficult for employers that have a zero-tolerance drug policy. The policy usually means companies can refuse to hire or fire employees who fail a drug test for marijuana, whether or not it was obtained legally.

However, because marijuana can stay in someone’s system for weeks, the tests do not always indicate the employee is currently impaired. Because of this, some states offer protection to medical marijuana users by requiring employers to show proven evidence of impairment.

But that becomes even more difficult because there is little guidance about what is considered “impairment” from marijuana use. In Florida, there is no evidence of impairment required, so employers in the Sunshine State can continue to maintain and enforce zero-tolerance drug policies.

Soon enough, there won’t be any guesswork. The U.S. Department of Health and Human Services is expected to release regulations for employers in the coming months, so that will shed light on best practices.

The possession of marijuana is still a federal crime, but the current Department of Justice (DOJ) policy allows individual states to apply their own rules for marijuana use, without much federal interference. This may change as leadership changes in Washington.

Questions? We’re here to help. Consult our team of expert HR consultants who can provide guidance and help you navigate the new medical marijuana regulations.

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Christine Batten, PHR
Christine Batten, PHR

Christine has over 20 years of HR related experience with a background in labor and employment law.