Thirty-eight states and the District of Columbia have legalized adult access to medical and/or recreational cannabis, including Maryland and Virginia. This patchwork of laws poses challenges for employers and workers scrambling to determine how to protect themselves when faced with questions of drug testing, performance, accommodations, leave, and discipline. 

One thing is clear: an employer never has to tolerate impairment on the job. As of this writing in April 2023, properly drafted drug testing policies are also enforceable if they are implemented consistently.    

What’s In A Name?  

The term “marijuana” has a history of association with bias, outright racism, and disproportionate policing of black and brown communities. Employers should use the term “cannabis” when refreshing their workplace policies.  

Cannabis Is Illegal Under Federal Law 

All marijuana or cannabis use is illegal under federal law. Marijuana is still listed as a Schedule I drug in the Controlled Substance Act, meaning the law deems it to have no medicinal value and it has a high potential for abuse.   

Under federal law: 

• Medical cannabis is not considered a prescription.  
• Medicinal use 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.  
• Medicinal use 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. 

The FDA Has Approved Cannabis-Derived Drugs 

CBDs or cannabidiols are chemical components of cannabis which are thought to affect pain, mood and mental function.  The Food and Drug Administration (FDA) has approved a few synthetic CBDs and cannabis-derived drugs for a variety of uses, including controlling seizures and controlling nausea and vomiting associated with cancer chemotherapy. 

Maryland, DC and Virginia Permit Medical Cannabis 

Medical cannabis access occurs when a registered health provider certifies that a patient is in need of medical cannabis 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.

Obtaining medical cannabis is highly regulated by state law. For example, when a Maryland 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 cannabis is still illegal, even with an ID card. 

So-called “compassionate care laws” are similar in some states, but every state has variations in the wording of their statutes. Some states provide explicit workplace protections. Others do not. 

Tips for Employers and Independent Schools 

Do not be confused: retain and consider strengthening your drug-free workplace policy. Currently, no state prevents 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 cannabis at work. Unless prohibited by your specific state law, employers can prohibit an employee’s use of cannabis 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 Interactive Process before Denying a Request. If an employee requests any type of accommodation or leave related to using medical cannabis, an employer should treat the request cautiously. Engage in the “interactive process” just like any other potential disability accommodations request because either the medical use or the underlying condition may constitute a “disability” or “serious health condition.” Consider all potentially applicable laws, including the ADA, the FMLA, and state and local laws such as “sick and safe leave” both where the employer is located and where the employee lives or works.  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.  Speak to an attorney before denying or agreeing to reasonable accommodations.

Federal contractors follow federal rules. Federal contractors must maintain zero-tolerance drug policies regardless of state medical cannabis use laws. 

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.   

Need help finding you way through the haze? please reach out to discuss your cannabis policies.