The legalization of medical marijuana is ever increasing with 33 states now permitting the use of medical marijuana, including Maryland. Yet, Maryland has not passed employment protections for users into its medical marijuana laws. As a result, Maryland state law conflicts with federal law, leaving employers and workers scrambling to determine how to protect themselves when faced with questions of drug testing, performance, accommodations, and leave. For now, Maryland employers can still discipline employees for being under the influence at work and for failing a drug test if the employer has a strong workplace drug policy. Maryland employers are not required to accommodate an employee on the basis of a medical cannabis ID card, but should be cautious to engage in an interactive process before any outright denial of a request for accommodation.
Marijuana Is Illegal Under Federal Law
All marijuana or cannabis use is illegal under federal law. Cannabis is still listed as a Schedule I drug in the Controlled Substance Act. Medical marijuana is not considered a prescription and is not a covered disability under the Americans with Disabilities Act, which requires an employer to provide a qualified employee with a disability with reasonable accommodations unless doing so would pose an undue hardship. Similarly, medical marijuana is not covered under the Family and Medical Leave Act, which allows qualified employees with serious health conditions to take time off for medical treatment. Federal Department of Transportation regulations prohibit marijuana use by individuals in safety-sensitive positions such as pilots, truck and school bus drivers, and certain occupations in other transit industries.
Maryland Permits Medical Marijuana
In Maryland, recreational marijuana use is illegal but medical marijuana is now permitted when a registered health provider certifies that a patient is in need of medical marijuana to treat a qualifying condition. Examples are cachexia, anorexia, wasting syndrome, chronic or severe pain, severe nausea, seizures, severe or persistent muscle spasms, glaucoma, and post-traumatic stress disorder or another chronic medical condition which is severe and for which other treatments have been ineffective. When the patient registers with the Maryland Medical Cannabis Commission, the patient and up to two caregivers can purchase ID cards which allow them to legally purchase medical marijuana on behalf of their designated patients from licensed Maryland dispensaries and transport the legally obtained medical cannabis to their designated patients. Home-grown marijuana is still illegal, even with an ID card.
To date, there is no Maryland law which addresses medical marijuana in the workplace. Thus, until the legislature passes clear guidance for Maryland employers and workers, the general legal concept that federal law trumps state law will guide questions about workplace drug testing, performance, accommodations, and leave.
Tips for Maryland Employers and Independent Schools
Do not be confused: retain and consider strengthening your drug-free workplace policy. Maryland law does not prevent an employer from testing for use of cannabis or from having a “zero tolerance” drug policy. Employers can discipline an employee for being under the influence of marijuana at work. Employers can prohibit an employee’s use of medical marijuana on or off the job, including not hiring an applicant or terminating an employee who refuses to take a drug test or fails a drug test.
Engage in the ADA Interactive Process. Maryland employers are not required to accommodate a qualified individual with a disability on the basis of their medical marijuana card. If the employer chooses to accommodate a medical marijuana user, consider safety carefully, especially if the employee is expected to supervise machinery or children or others with limited or diminished capacity. Regulated safety-sensitive positions, such as truckers, school bus drivers, and all other workers who are required to hold a CDL license can only be filled by employees who pass routine drug testing.
Federal contractors follow federal rules. Federal contractors must maintain zero-tolerance drug policies regardless of state medical marijuana use laws.
Tips for Employees
Check your employer’s workplace policies. Having a medical marijuana card does not insulate you from workplace performance issues such as attendance, quantity of work performed, or falling asleep on the job. You can be disciplined for being under the influence at work. You can be disciplined if you test positive for use of cannabis even if you have a medical marijuana card, up to and including termination. All policies should be applied consistently.
Explain your disability and how it affects you. You may qualify for reasonable workplace accommodations based on the underlying chronic condition for which you received your medical marijuana card.
Addiction treatment is covered. FMLA protections – up to 12 weeks of unpaid leave, continuation of benefits during the leave and job restoration after the leave – are still available for medically-supervised substance abuse treatment.
If you have questions about this article or about developing fair and effective workplace policies, contact Jose Espejo at McMillan Metro Faerber, P.C. at (301) 251-1180, jespejo@mcmillanmetro.com. Our areas of practice include education, corporate and business, and employment law and litigation.
This article is written for general informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.
