What are an employee's rights when it comes to using medical marijuana for pain?

By Work Place | Last updated: May 26, 2019

As recreational and medical marijuana has become legalized at the state level in more and more places, confusion levels surrounding an employee's right to use it increases. In the United States, marijuana/cannabis in either form (recreational or medical) is still considered illegal at the federal level. In Canada, it has been legalized for both recreational and medicinal use. The FDA has only approved a very limited number of cannabis derived drug products. This raises many questions for employers around how to approach and regulate marijuana use by workplace employees.

It wasn't long ago that marijuana was widely considered an illegal substance that recreational users enjoyed in order to get high. Tetrahydrocannabinol (THC) is one of the cannabinoids present in marijuana and is the psychoactive substance commonly associated with "feeling high."

However THC is only one of many cannabinoids in marijuana. In recent years the discovery of the therapeutic benefits of other cannabinoids such as cannabidiol (CBD) has led to an explosion in it's use as a treatment for a number of health issues. Cannabinoids such as CBD do not produce the "high" that THC does and are used as medical marijuana. Medical marijuana is used as a treatment for a number of conditions including pain management, muscle spasms, epilepsy, cancer, Alzheimer's and more.

Workplace employees in both Canada and the United States may legally have access to medical marijuana. This requires workplace employers to create clear guidelines around marijuana use with regards to their workplace drug and alcohol policy.

An employee may be able to legally consume marijuana in either a recreational or medicinal form. In a similar sense, it is also legal for an employee to purchase, possess and consume alcohol. However, it is likely that a workplace will have strict rules in place regarding alcohol use that impact an employee's ability to carry out their job role safely and effectively. Similarly, guidelines and policies need to be put in place regarding the use of medical marijuana.

In a number of states, medical marijuana can be legally used for conditions that are considered to be a disability. Essentially, an employer should consider offering an accommodation to an employee who uses medicinal marijuana in the same way that they would accommodate an employee with a disability who has another type of prescribed medication. It is still considered a grey area whether medical marijuana implies a disability. Under the Americans with Disabilities Act (ADA) an employer is not required to accommodate an employee who requires medical marijuana.

Medicinal marijuana use should always fall in place with workplace drug and alcohol rules. Rules and policies may include:

  • The requirement to abide by workplace health and safety rules
  • Forbidding employees to smoke at work
  • Ensuring employees are not impaired or "under the influence" at work

Overall, employers should revisit their drug and alcohol guidelines surrounding marijuana and be familiar with the state laws and local regulations regarding medicinal marijuana. Strong and clear policies must be in place to leave no room for misinterpretation around workplace drug and alcohol testing requirements. Enforced policies should be similar to those surrounding other forms of prescribed medication that may have the ability to impair a person's function in the workplace.

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