The DOJ Rescheduled Medical Marijuana: Key Risk Areas for Employers to Keep in Mind
The Department of Justice recently issued an order rescheduling FDA-approved and state-authorized medical marijuana from Schedule I (substances with no accepted medical use and a high potential for abuse, like heroin, LSD, and MDMA) to Schedule III (substances with accepted medical uses and a moderate to low potential for dependence, like certain hormone therapies, anabolic steroids, and products containing codeine). The DOJ also directed the Drug Enforcement Administration to commence rulemaking to reschedule all marijuana.
While the cannabis industry may be seeing greener pastures, employers still face a hazy compliance landscape.
What rescheduling does not do:
- Make all marijuana federally legal.
- Legalize medical marijuana in states that continue to prohibit marijuana use.
- Require employers to permit on-duty impairment or workplace intoxication.
- Automatically invalidate state laws that protect employers’ rights to maintain drug-free workplaces.
What rescheduling does do:
- Recognize certain medical marijuana use as a legitimate medical treatment when used in accordance with state law and healthcare-provider guidance.
ADA Accommodation Obligations
The DOJ’s rescheduling order does not directly address employment law. However, rescheduling marijuana raises questions about the interaction between marijuana and the Americans with Disabilities Act.
The ADA does not require employers to accommodate the “illegal use of drugs.” Historically, because marijuana was classified as a Schedule I controlled substance, employers could safely deny accommodation requests related to employees’ use of marijuana, medical or otherwise. However, after rescheduling, employers may soon find themselves navigating accommodation requests that, until recently, were easy to weed out.
Under the new standard, not all marijuana use may automatically constitute the “illegal use of drugs” for ADA purposes. As a result, employers in states with medical marijuana programs should expect increased requests for reasonable accommodations from employees who use medical marijuana to treat qualifying medical conditions. We also anticipate significant litigation addressing the extent to which medical marijuana use may be entitled to ADA protection following rescheduling.
New Risks for Drug Testing
Another major change rescheduling brings are new risks for drug testing. Employers that rely heavily on positive marijuana test results should proceed carefully—the legal defenses that once seemed airtight may no longer be a sure thing.
The ADA and its implementing regulations provide that tests conducted “to determine the illegal use of drugs” are not medical examinations. Historically, this exemption allowed employers to conduct marijuana testing with virtually no federal restrictions (although some states, like California, prohibit employers from testing for off-duty marijuana use).
If certain medical marijuana use is no longer considered illegal drug use under federal law, marijuana testing may be a medical examination under the ADA. If that’s the case, employers will need to demonstrate that testing for marijuana is job-related and consistent with business necessity, particularly for current employees.
Additional Issues Employers Should Monitor
State Medical Marijuana Employment Protections
Employers should review their policies for compliance with applicable state laws, which may provide protections exceeding those available under federal law. Although Michigan is not one of them, many states already prohibit employers from taking adverse action against employees solely because they are medical marijuana cardholders or because they test positive for marijuana outside of work. Of course, adverse employment actions for cardholder status alone still present significant risk because the mere possession of a card is a proxy for disability.
DOT – Regulated Employers
The impact of rescheduling on DOT regulated employers is unknown at this point. The DOT has previously stated that it will not reconsider its absolute prohibition on marijuana use until rescheduling occurs. The DOT’s regulations on prohibited drugs does not rely on Scheduling status, and includes marijuana in its own definition of ‘drugs.’ Only time will tell how the DOT will respond to rescheduling, but absent reliable technology to differentiate between current marijuana intoxication and prior use, it’s unlikely the DOT will make any significant policy changes in response to rescheduling.
Federal Contractors and Grant Recipients
Employers that receive federal grants or contracts should continue monitoring guidance related to the Drug-Free Workplace Act. Rescheduling does not automatically eliminate federal workplace obligations, and employers should be cautious before modifying drug-free workplace policies based solely on the DOJ’s action.
Key Takeaways
The DOJ’s order may not make marijuana fully legal, but it does make the employment-law analysis considerably more complicated. Employers should not expect these issues to simply go up in smoke. Instead, they should anticipate continued litigation (indeed, legal challenges to rescheduling are already underway from interest groups), agency guidance, and legislative developments as courts, regulators, and employers work through the practical consequences of rescheduling. Unfortunately for employers, legal certainty remains a controlled substance, and the intersection of employment law and marijuana regulation remains anything but recreational.
In the meantime, employers should consider reviewing their drug-testing policies, accommodation procedures, fitness-for-duty standards, and supervisor training programs. Employers with questions about how these developments may affect their workplace policies should consult with their trusted partners in Miller Johnson’s Employment and Labor Practice Group for practical, business-focused compliance guidance.