The Americans with Disabilities Act: Employers are prohibited from discriminating against otherwise qualified individuals on the basis of a disability. Further, employers are required to provide reasonable accommodations to such individuals. A reasonable accommodation is one which does not create an undue hardship for the employer. The ADA specifically provides that an employer may take adverse actions against an individual currently engaging in the illegal use of drugs. Excluded from this provision of the law are drugs taken under supervision of a licensed health care professional. Massachusetts, Oregon and California courts have found that employers are not obliged to accommodate the use of medical marijuana.
Drug Testing: Because construction is considered a “safety sensitive” occupation, employers may establish zero tolerance policies for those engaged in such safety sensitive work and have the ability under existing state law to drug and alcohol test both applicants and employees. OSHA has, however, recently proposed regulations which would prohibit mandatory drug testing after a work related accident unless there is reason to believe that drugs or alcohol are likely to have played a part in the accident. Privacy laws also impact how and when an employer may test for drugs and alcohol. But the advent of recreational marijuana should not eradicate the testing rights of employers.
Recreational Marijuana: Because marijuana is a Schedule 1 Substance, employers may prohibit its use, sale or an individual’s being under the influence on the job. One case from Colorado’s Supreme Court held that Colorado’s recreational marijuana statute did not protect a quadriplegic worker’s off-duty use of medical marijuana because its use is in violation of federal law.
The specific wording of the statute legalizing recreational marijuana as well as the regulations surrounding that use, determinations by the Industrial Accident Board and Unemployment are all yet to be published and will help us decide how to change or enforce company policies in the future.
Carol Chandler is a partner in the Boston law firm Stoneman, Chandler & Miller, LLP and has served as Labor Counsel for ABC Massachusetts for over 15 years. Attorney Chandler provides ABC members with a free initial consultation. Carol and her firm have helped ABC members on issues involving the maintenance of merit shop environments, wage and hour laws, benefit programs, employee handbooks, the requirements of the prevailing rate statutes and the defense of claims involving unfair labor practices.
Disclaimer: This website contains material intended for informational purposes and should not be considered as legal advice