Accommodating the medical use of marijuana
Atterberry: For states that have an accommodation clause as part of their medical marijuana statutes, generally an employer isn’t allowed to engage in status-based discrimination.
The situation often arises in the context of zero-tolerance drug tests and the need to make an accommodation of medical marijuana users in those states where it is legal and where the statute includes an accommodation clause.
Bloomberg BNA: Do any of the laws address how an employer should respond to requests for use off-site, during breaks, or while working from home?
Atterberry: Again, an employer in a state that has an accommodation clause needs to consider the specific requirements of that state.
The Americans with Disabilities Act doesn’t protect employees or applicants who currently use “illegal” drugs when an employer takes adverse action based on drug use.
Courts have said the ADA defines “illegal drug use” by reference to the federal Controlled Substances Act, which classifies marijuana as a Schedule I illegal narcotic.