Thinking out loud about medical marijuana and reasonable accommodation

Just asking.

(When I think out loud, beware.)

Ellen Kearns' discussion of last week's decision in Barbuto v. Advantage Sales and Marketing, in which the Massachusetts Supreme Judicial Court ruled that employers may have to accommodate employees who use medical marijuana, got me thinking about whether we need to revisit some of our assumptions about marijuana in the workplace.

A very quick recap of the Barbuto decision: The Court said that an employee with a disability who used medical marijuana in accordance with Massachusetts state law (and off-site and during non-working hours) might be entitled under the state's disability-rights law to reasonable accommodation of her marijuana use. One exception, among possibly others, would be for the employer to make an exception to its "no drugs" policy.

Before I go on, let me make some disclaimers. First, I'm not talking about jobs where applicable federal law prohibits marijuana use, such as drivers governed by U.S. Department of Transportation regulations, or airline personnel governed by Federal Aviation Administration regulations. Second, I'm not talking about employees in states that either (1) do not allow medical marijuana use or (2) do not have state disability statutes that require reasonable accommodation. Third, I'm not talking about any jobs that are truly safety-sensitive. Fourth, I'm not talking about use of marijuana in the workplace or during working hours. Fifth, I'm not talking about recreational use of marijuana, period.

In jurisdictions where the Americans with Disabilities Act governs, employers should be able to refuse to hire applicants or to terminate employees who test positive for marijuana, even if the use is medicinal. That is because the ADA does not protect "current users of illegal drugs," and marijuana is still an illegal drug under federal law.

In other words, what I'm thinking about is workplaces in states that allow the use of medical marijuana and also have disability protections at the state level, and where there are employees in non-safety-sensitive jobs who are lawfully using marijuana to treat conditions that qualify as "disabilities" under the applicable state law.

In that limited category of workplaces and employees, shouldn't employers be thinking about treating the use of medical marijuana the same way they'd treat the use of other prescription medications?

Suppose an employee with back problems takes prescription pain medications. As an employer, you would not disqualify him from working in customer service or in some other non-safety-sensitive job unless there was an indication that his condition or medication made him unable to do the job. Right?

I'm having trouble seeing the difference between these "normal" situations and an employee who has been lawfully prescribed marijuana for his or her medical condition that qualifies as a "disability."

I checked the Mayo Clinic website on risks associated with use of medical marijuana, and here is what they say:

Is medical marijuana safe?

Further study is needed to answer this question, but possible short- and long-term risks of using marijuana to treat medical conditions include:

  • Addiction, which occurs in about 10 percent of users who start smoking marijuana before age 25
  • Breathing problems, for people who smoke marijuana
  • Dizziness
  • Impaired concentration and memory
  • Increased heart rate
  • Increased risk of heart attack or stroke
  • Mental illness in people with a tendency toward it
  • Negative drug-to-drug interactions
  • Slower reaction times
  • Withdrawal symptoms

But they also say this:

Some medical marijuana is formulated to provide symptom relief without the intoxicating, mood-altering effects associated with recreational use of marijuana.

Compare that with what the Mayo Clinic says about opioids, like hydrocodone and oxycodone for treatment of arthritis pain:

An opioid isn't the first choice for treating chronic conditions such as arthritis. Aside from cancer pain, opioids more commonly are reserved for short-term pain relief, such as after injuries or surgeries. When other means of relieving arthritis pain haven't helped, opioids may be prescribed. But safety and effectiveness are issues.
Opioids may not be helpful. Even when they are, people often develop a tolerance to opioid pain medications over time, so the effect of the medication may diminish after taking the same dosage for several months.

Opioids have risks that may be particularly serious for older people, including:

  • Sedation. Opioids can cause sleepiness or mental clouding, which can dramatically increase the risk of fractures caused by falls.
  • Disordered breathing. Higher doses of opioids can result in slower or shallow breathing patterns, especially during sleep.
  • Heart problems. Some opioids increase the risk of heart attack or heart failure.
  • Constipation. Many older adults are already dealing with this problem and opioids generally just make it worse.

In other words, both marijuana and opioids, as well as other legal medications, have side effects and risks. Both marijuana and opioids (as well as other legal medications) can affect mental functioning. So why treat marijuana differently if it is legal, and if it's being taken to treat a disability?

It seems to me that, for the category of employee we are talking about, the employer may want to consider treating the medical marijuana user the same way it would treat any other user of a lawful prescription medication. In other words,

  • Tell employees to disclose any medications they are taking that could affect the safe performance of their jobs or the safety of their co-workers or the public, or that may impair their functioning to the point that they may not be able to perform the essential functions of the job.
  • Be alert to indications that an employee is impaired, and follow up as appropriate.
  • If the employer becomes aware that the employee is using an "impairing" legal prescription medication, engage in the interactive process with the employee to determine whether a reasonable accommodation is needed and, if so, what type of accommodation would be effective.
  • If no reasonable accommodation in the employee's current job is possible, consider transferring the employee to another pre-existing, vacant position for which he or she is qualified and for which there would not be these risks.
  • If no such alternate position is available, place the employee on medical leave.
  • If all of these alternatives are tried and fail, then administratively terminate the employee for being medically unable to perform the job, with or without a reasonable accommodation.

Like I said, I'm just thinking. Am I off base? What do you think?

Image Credits: From flickr, Creative Commons license. Marijuana "green light" by Alejandro Forero Cuervo; marijuana neon sign by Chuck Coker.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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