Now that Maryland, and several other states and jurisdictions have decriminalized cannabis for medical use, there is a new and unique employment issue to consider.  What could/should an employer do when an employee tests positive for cannabis?
 
The short answer is an employer should tread carefully. 
 
This area of the law is not defined and will develop in the coming years.  As long as there is a dichotomy between some states allowing medical cannabis, and the federal government prohibiting all marijuana use and possession, there will be some confusion and debate as to what rights users of medical cannabis have.  Below are some areas of law that should be considered when an employer is faced with this issue.
 
State Law Considerations
Under Maryland laws and regulations, it is not clear whether a drug free policy can include a prohibition against medical marijuana.  This is in contrast with some other jurisdictions that specifically provide for an employer to continue to test for cannabis and reprimand for positive tests based on violations of drug free policies.  Maryland has no such provision under any law or regulation.  Further, no court in Maryland has directly considered this issue. 
 
While there is no binding law or precedent, the Maryland Medical Cannabis Commission has a list of frequently asked questions on its website.  On that website, the Commission indicates that “Maryland law does not prevent an employer from testing for use of cannabis (for any reason) or taking action against an employee who tests positive for use of cannabis (for any reason).”  While this is on an official government agency’s website, and presumptively gives an indication that an employer would be protected for taking employment action based on the positive drug test, this frequently asked question is not binding on a court of Maryland.  If a court would disagree with the agency’s statement, this statement will not offer actual protection to an employer.
 
Equal Employment Considerations
An employer can seek more information about medical conditions once an employee is hired and has started work.  Essentially, the employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer has reason to believe an employee would not be able to perform a job successfully or safely because of a medical condition.  To the extent that there is a concern regarding an employee being under the influence, and being able to perform a job successfully or safely, then asking for more information regarding the employee’s condition, and the use of the marijuana seems to be appropriate.
 
Family and Medical Leave Act Considerations
Generally, Family and Medical Leave Act (FMLA) allows for leave to treat serious conditions.  If the employee is using medical marijuana to treat such a serious condition (for example chronic depression), then the time the employee needs to treat that condition, or to take her medication, could be considered FMLA leave and protected.  If the leave is considered FMLA, then any refusal to allow this type of leave, or retaliation because someone took that leave, would be prohibited.  However, FMLA is a federal law and under federal law, the use of cannabis is prohibited.  Therefore, claiming FMLA leave would be requesting protections under one federal law while violating another.   It is unclear which law would be favored by a court when this situation arises.
 
Americans with Disabilities Act Considerations 
Under the Americans with Disabilities Act (ADA), a person currently using illegal drugs is not a qualified individual with a disability and thus is not protected. In addition, testing for illegal drug use is not considered a medical examination, which means the ADA does not restrict when an employer can test for the use of illegal drugs.
 
Under the ADA, however, illegal drug use does not include use of drugs “taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal law.” The question is whether medical cannabis which was recommended by a licensed health care professional, and which otherwise follows the laws of the state, is considered illegal drug use.  The answer is unclear.  The statute implies that a licensed health care professional would only supervise use authorized by the Controlled Substances Act, which does not permit cannabis to be prescribed.  However, the statutes do not explicitly state that position, and if you take the statute literally, medical cannabis is taken under supervision of a licensed health care professional. 
 
Employer Policies and Procedures Considerations
Whenever an employment matter arises at a business, the employer should also consider what policies, practices and procedures are normally followed by the employer.  For example, does the employer have a drug fee policy?  What does the employer do when a prescription drug interferes with an employee’s ability to do their job?  How does the employer handle alcohol or other intoxications?  All of these issues could be factors to consider when an employer is trying to navigate this uncharted territory.   
 
The main takeaway for employers when medical cannabis is involved is for the employer to proceed with caution.  Expect that if you take adverse employment action (as in most situations), there is always the potential for a claim, and that this particular topic does not have a long enough history to know what a court would do if a claim is made.
 
For more information about this topic, or for specific questions on this topic, please contact the attorneys at DeCaro Doran to discuss.