Tag: Marijuana

Up In Smoke? Clearing the Workplace Haze of Medical Marijuana

Marijuana, the most commonly used illicit drug in America at home and in the workplace, is earning respect from mainstream citizens who support its ‘legalized’ use for medical reasons. If estimates are true, and millions of workers are stoned on the job, the question and concern is: how many of these users will move to legitimize their use of the drug, on the job, and what impact will its use have on the productivity and quality of the American worker.

Legalized marijuana has sparked a new concern for employers that can’t simply be passed around until it burns out. While it may be a bit early to draw any conclusions, there are some facts and myths that should put an employer’s mind at ease, and yet, others that will require employers to proceed with caution (particularly when state and federal law are in conflict).

Myth: It’s not illegal to use medical marijuana if your state allows it.

Fact: Federal law supersedes state law, and marijuana is illegal under federal law. It’s in the same category as heroin and cocaine.

Myth: Employees legally using medical marijuana (under state law) are protected by the Americans with Disabilities Act (ADA).

Fact: The ADA generally does not protect current users of drugs that are illegal under federal law, like marijuana. But, employees using medical marijuana may still suffer from a disability that is protected by the ADA. If medical marijuana comes up, employers should engage in the interactive process to determine whether the employee may be entitled to a reasonable accommodation that does not involve marijuana use.

Myth: The legalization of medical marijuana will not affect my business or workplace.

Fact: Sooner or later, most businesses will be affected by the legalization of medical marijuana. In some cases, accommodating the use of medical marijuana can have unexpected consequences. For example, it may violate applicable federal laws or regulations, like DOT requirements for safety-sensitive positions or OSHA requirements to provide a safe working environment. And, if an employee using medical marijuana hurts someone else, the employer may be sued for negligent hiring, retention or entrustment.

More myths and facts will emerge now that the marijuana debate is burning at both ends. Until the picture gets clearer, employers should proceed cautiously. In the meantime, employers should consider Employment Practices Liability Insurance to protect against inadvertent violations.

Please contact us if you would like to learn more about protecting your business against employment-related liabilities. To receive regular updates about developments which may affect your business, subscribe to Setnor Byer Insurance & Risk’s weekly risk management news brief

What Does Florida’s New Medical Marijuana Law Mean for Employers?

Florida has joined the growing number of states that regulate and permit the medical use of marijuana after more than 6.5 million Floridians voted to approve Amendment 2. As a result, the Florida Constitution now includes the right for people with one or more of the following Debilitating Medical Conditions to use marijuana if such use has been certified by a physician:

  • Cancer;
  • Epilepsy;
  • Glaucoma;
  • Positive status for human immunodeficiency virus (HIV);
  • Acquired immune deficiency syndrome (AIDS);
  • Post‐traumatic stress disorder (PTSD);
  • Amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease);
  • Crohn’s disease;
  • Parkinson’s disease;
  • Multiple sclerosis; or
  • Other debilitating medical conditions of the same kind or class as or comparable to those enumerated.

The use of medical marijuana requires written certification from a licensed physician that in the physician’s professional opinion, the patient suffers from a debilitating medical condition and that the medical use of marijuana would likely outweigh potential health risks. The certification, which must state the recommended duration of use, may only be provided after the physician has conducted a physical examination and fully assessed the patient’s medical history.

Amendment 2 becomes effective on January 3, 2017. (An amendment without a specific effective date becomes effective on the first Tuesday after the first Monday in January following the election.) As of the effective date, the Florida Department of Health has six months to issue procedural regulations and nine months to begin issuing identification cards and registrations to those who qualify for the medical use of marijuana.

The extent to which Amendment 2 may affect employers is uncertain. However, there are limits to how far employers must go to accommodate the medical use of marijuana. For example, Amendment 2 expressly states that it does not require any accommodation for the on‐site medical use of marijuana in any place of employment or for smoking medical marijuana in any public place. It also doesn’t require health insurance providers to reimburse expenses related to the medical use of marijuana.

Perhaps the most significant limitation of Amendment 2 comes from the fact that marijuana is an illegal drug under federal law, regardless of what the Florida Constitution provides. This is important because the Americans with Disabilities Act does not cover individuals who are currently using drugs that are illegal under federal law. As a result, the protections afforded to qualified individuals with disabilities under the ADA do not apply to the use of medical marijuana even if it is legal under Amendment 2.

Another aspect of the state vs. federal distinction may limit the impact of Amendment 2 even more. Since 2013, the U.S. Department of Justice’s policy has been to defer the right to challenge state marijuana legalization laws. This voluntary hands-off policy may change under the new administration.

Despite these limitations and uncertainties, employers can start the process of adapting to Amendment 2 by updating handbooks and policies to clarify that the use of any illegal drug, including the medical use of marijuana pursuant to a physician’s certification, is strictly prohibited. Until procedural regulations are issued, employers should proceed cautiously when it comes to medical marijuana.

Since the likelihood of inadvertent violations can increase dramatically when the law changes, employers should consider Employment Practices Liability Insurance to protect against the financial consequences associated with employment-related claims. Please contact us if you would like to learn more about protecting your business with employment practices liability insurance.

To receive regular updates about developments which may affect your business, subscribe to Setnor Byer Insurance & Risk’s weekly risk management news brief.