As marijuanalegalization spreads from municipality to municipality andstate to state, employers watching this wave of legislation to endmarijuana prohibition have good reason to wonder about the futureof their employment policies.

And in questionable workplace situations that involve medicalmarijuana, employers might be confused about what they are and arenot required to accommodate under the Americanswith Disabilities Act.

The annual Disability Management Employer Coalition'sAnnual Conference in Las Vegas included a panel discussionAug. 12, “Cautionary Tales: The Impact of Legalized Marijuana onthe Workplace.” DMEC executive director Terri Rhodes noted that anyemployer with a federal contract will want to pay special attentionto this issue.

“What's really driving this issue is the federal contractcomponent,” Rhodes said. “Employers that have federal contractsmust comply with federal law, and the federal government is stillsaying that the use of marijuana is illegal.

“In order to get reimbursement through these contracts,” Rhodessaid, “employers need to comply with the regulations and tomaintain a drug-free workplace. If an employee does test positivefor marijuana, and they do have a medical marijuana card in a statewhere that's approved, employers have to deal with that issue.”

The inability to accurately test for marijuana impairmentcompounds this problem; in states that have passedmarijuana-related impairment laws, such as thedriving-while-impaired law in Colorado, much debate has centeredaround where to set the legal blood limit for THC (the psychoactiveingredient in marijuana).

Because THC is not water-soluble, it remains in the body andbloodstream for up to 30 days after consumption – so a medicalmarijuana user with a chronic pain condition who medicatesregularly throughout the day likely will have to have a much higherblood-THC content than a casual user, but the casual user likelywill be more impaired from a physical and mental standpoint thanthe chronic one.

“Under the ADA, there is no obligation to accommodate marijuanause,” said Danielle Urban, an employment attorney with the Fisher& Phillips law firm in Denver, “even if someone has adisability and a health care professional has said the employeemight benefit from the medical use of marijuana. As an employer,you are free to have a zero-tolerance policy, with some exceptions,such as states like Arizona and Minnesota.”

Minnesota's law states that as long as employees aren'tusing or impaired at work, they are protected from losing theirjobs for testing positive for marijuana if they are a medicalmarijuana patient; Arizona's law states that as long as medicalmarijuana patients are not impaired at work or employed in a safetyposition, they are protected from losing their jobs from testingpositive for marijuana use.

Read more: Determining impairment…

In general, there are no readily available,inexpensive methods to test for impairment.

Although there are some computer-based assessment programs thatcan help employers test for impairment, where the employee “takes abaseline test when he or she first starts working,” Urbanexplained. “These tests are fairly sophisticated and require havingsomeone on staff who is properly trained to administer the test andevaluate results – and very few employers can really afford to havesomeone like that on staff.”

However, employers must be cognizant of the fact that employeesapproaching them with medical marijuana questions may have acondition that is protected under the ADA, even if their marijuanause to treat that condition is not protected.

“Employers shouldn't simply say, 'I can't accommodate you,'especially if the employee has come to them with this issue beforeviolating company policy with a positive drug test,” Urban said.“In most states, employers are not required to accommodatemarijuana use, but they must recognize that the employee may have acondition that is protected under the ADA. It is up to the employeeto engage in the interactive process with the employer to addressthe need for accommodation in a way that not only accommodates theemployee but also does not become an undue hardship on theemployer.”

As an example of an ideal situation, say an employee suffersfrom chronic nausea and is using medical marijuana to treat it, andthe employee approaches the employer and discloses the conditionand the marijuana use. If the employer is not comfortable with theemployee's marijuana use, then the employee and employer shouldwork together to find effective alternatives to medical marijuanathe employer is willing to accommodate.

Perhaps the employee is more nauseated at certain times of theday, and the employer can work to adjust the employee's schedule sohe or she is not required to be at work during those hours.Employers can also provide additional leave days for the employeeto use when the condition flares up, and employers can even suggestand accommodate other alternative treatment methods that have beenshown to treat pain and nausea, such as acupuncture.

There are also compounds that synthesize the medically usefulcomponents of marijuana without the psychoactive components, suchas Marinol, which are available with a prescription from a doctor,but employers also should be aware that medical marijuana users saythat these compounds are not as effective as marijuana for treatingtheir conditions.

“It's simple in theory,” Urban said, “but it's very complicatedin real life, because disabilities are a complicated issue foremployers. No two disabilities are the same.”

Rhodes adds that when an employee does test positive formarijuana in a zero-tolerance workplace, there are usually severalsteps the employer takes before moving to terminate theemployee.

“Most employers have an option where they would offer drugcounseling, rehabilitation and employee assistance programs, andpossibly a last-chance agreement,” she said. “And while the ADAdoes not condone illegal drug use, it does require employers tohave discussions and not just carte blanche fire somebody becausethey have a medical condition and are treating it withmarijuana.”