Over the past ten years, states and local governments have increasingly legalized the use of marijuana, depending on the reason. A majority of states and DC have legalized the use of marijuana for medicinal purposes while a growing minority of states and DC have legalized the recreational use of marijuana. Within those states, differences persist regarding whether employees are entitled to accommodations for medicinal marijuana use, typically in the form of an exemption from the employer’s drug-free workplace policies. While Maryland has not fully legalized recreational marijuana use, with a legalization effort failing in the General Assembly this year, it has decriminalized it for small amounts for personal consumption and has legalized medical marijuana, following similar trends across the country. For many employers, this has created confusion as to whether they are required to accommodate medical marijuana use under Maryland law, particularly as public acceptance of marijuana use increases.
As of the date of this article, there is no legal authority requiring that Maryland employers accommodate medicinal marijuana use. Under federal law, marijuana is a “Schedule 1” controlled dangerous substance, meaning that is has a high potential for abuse and is not currently accepted for medical use. As a result, there is no duty to accommodate medical marijuana use under the Americans with Disabilities Act (the “ADA”) which is a federal law. Therefore, any duty to accommodate would arise under Maryland state law. Neither Maryland’s law permitting medicinal marijuana, nor its Fair Employment laws explicitly protect employees from employment-related consequences of medical marijuana use – instead, they eliminate criminal penalties. In fact, the Maryland Medical Cannabis Commission’s FAQs explicitly warn patients 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).”
With all of that said, except for certain government contractors or employees in certain federally regulated positions, employers are not required to terminate or discipline employees engaged in medicinal or even recreational marijuana use. Given the legal uncertainty around the duty to accommodate, many employers have voluntarily granted accommodations to employees who use medicinal marijuana outside of work, so long as their use does not result in them arriving to work while impaired. Other employers, given the growing legalization movement, increased marijuana use among young people, and the tight job market, have announced that they will not test employees for marijuana use or refuse to hire employees who test positive for marijuana use absent at-work impairment.
If you have questions about whether you need to accommodate medicinal marijuana use by your employees or your drug testing policies, please contact one of the Luchansky Law attorneys at (410) 522-1020 to set up an appointment to discuss how your policies can be structured to meet your company’s goals.