In many states, the legalization of cannabis for recreational use has created important challenges for employers and employees alike. One challenge often arises when an employer becomes aware of medical marijuana use by an employee, forcing the employer to address its obligations under disability discrimination laws, among others. Some states, including California, have not extended protections to medicinal users in the employment context; however, employers must still be mindful of their obligations regarding the potential accommodation of employees with disabilities and mitigating risks of discrimination claims.
California recently legalized recreational use of cannabis through Proposition 64. Importantly, Prop 64 does not supersede the right of employers to maintain a drug-free workplace, including the right to discipline employees who test positive for the use of cannabis. The law expressly does not require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace.
The Americans with Disabilities Act (ADA) and certain state laws, including the California Fair Employment and Housing Act (FEHA), require employers to provide reasonable accommodations to disabled employees and applicants. This responsibility is broader under the FEHA than under the ADA.
Whereas the ADA limits its coverage to physical or mental conditions that “substantially limit” a major life activity, the FEHA requires only that the disability “limit” such activity.
Selecting an appropriate accommodation is an individualized process depending on the limitations of the applicant or employee’s disability. The purpose is to assist the employee with performing the “essential” functions of the job. For example, FEHA regulations provide a non-exhaustive list of possible accommodations, including: job restructuring; offering part-time or modified work schedules; reassignment to a vacant position; altering when and/or how an essential function is performed; modifying supervisory methods; permitting an employee to work from home; and providing paid or unpaid leave for treatment and recovery.
A finite leave is also a potential accommodation, in the absence of an undue hardship, as long as the leave will assist the employee in returning to work. An employer cannot require employees to accept a leave if they’re able to work with an accommodation. The employer should hold the job open during the finite leave.
Once the employer is on notice that an employee has a potential disability that may impact the performance of essential job functions, it has a duty to engage in the “interactive process” with the disabled employee. This process is a dialogue between the parties to discuss potential reasonable accommodations for the employee. In general, the employee should request an accommodation to trigger this process. However, the employee does not have to use the magic words, “I request a reasonable accommodation.” Rather, once an employer becomes aware of the employee’s potential disability or its impact on the employee’s ability to perform the main job duties, the employee may establish the requisite “request” for an accommodation. This could trigger important duties of the employer. The employer should carefully document the process and the accommodations proposed and provided.
An employer’s knowledge of an employee’s medical cannabis use may mean the employee has a protected disability for which he or she needs a reasonable accommodation.
Knowledge of the potential disability is also a factor that the employer should consider in deciding whether to impose subsequent discipline on the employee. To do so may suggest disability discrimination, which the employer must avoid, of course.
Therefore it is critical that employers be familiar with its obligations to engage in the interactive process and consider how and whether to initiate it. This will depend on the particular circumstances, including whether the employer was otherwise aware that the employee is disabled, whether the employee has requested a reasonable accommodation or whether the employer was aware that a physical or mental condition impacted job performance.
These rules apply even though employers in California, and in other states, may still terminate or take adverse action against an employee who tests positive for cannabis or works while impaired. It is also important that an employer not take adverse action against an employee solely because the employee has a medicinal use card.
If employers are confronted with these situations, including an employee’s disclosure of a medicinal use card, they should consult their human resources professional or employment counsel.
Jason Geller is the managing partner of Fisher Phillips’ San Francisco office. He represents employers in all facets of employment law matters. He has extensive experience defending employers in federal and state courts, as well as in investigations by the Equal Employment Opportunity Commission, U.S. Department of Labor and the National Labor Relations Board. In addition to defending his clients in litigation, he frequently counsels employers to assist them in avoiding litigation. He can be reached at email@example.com.