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