• When an employee requests an accommodation for medical marijuana use, employers should consider the request.

An employee who uses medical marijuana may ask an employer to accommodate its use. The employee may ask for an exception to a workplace drug testing or substance abuse policy, for example.

Accommodation considerations in medical marijuana states

In some states, an employer is required to consider whether an accommodation can be provided to an individual who uses medical marijuana. Even in states where accommodation considerations are not required by law, it is a best practice to pause before taking a negative action against an employee or job candidate because of off-duty medical marijuana use or a positive drug test for marijuana. State laws and accommodation possibilities should be taken into account before action is taken.

When a worker makes a medical marijuana accommodation request, an employer can use the same methods that are used when accommodations are requested for other reasons. For example, an employer may consider what it typically does when an employee asks for an accommodation for use of a prescription medication.

This likely involves entering into the interactive process under the Americans with Disabilities Act (ADA), which typically includes:

• Gathering information. This could include documentation of the disability and the need for accommodation. The employee may be the best source for this information. Ask for medical information only if absolutely necessary.
• Looking into accommodation options. Gather ideas that will help the employee overcome disability-related limitations. Be open to suggestions from the employee, brainstorm ideas, and talk about what might work.
• Deciding on an accommodation. The possibilities may involve consideration of off-duty use of medical marijuana, depending on what state law requires. To ensure safety, employers may consider moving the employee out of a safety-sensitive position, using alternative scheduling, or changing the employee’s duties. The employer chooses the accommodation, although the employee’s preferences should be taken into account.
• Put the accommodation into place. A trial period may be used to determine whether the accommodation is working. This information should be documented.
• Monitor the accommodation. After the accommodation is in place, check in periodically to make sure it is effective.

Each situation must be addressed individually, and all the details must be considered. The process may be quick and informal or more structured. In every case, all steps should be documented.

While the ADA requires an effective, reasonable accommodation to be provided, the accommodation does not need to pose an undue hardship to the employer. Undue hardship means significant difficulty or expense, focusing on an organization’s resources and circumstances in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. If one accommodation poses an undue hardship, another accommodation can be considered.

Accommodation considerations for all employers

Employees do not have protections for medical marijuana use under federal law. Marijuana is still illegal under federal law, so employers do not need to accommodate it under the federal Americans with Disabilities Act (ADA).

However, when an employee asks about using medical marijuana, employers should still talk to the employee about other accommodations. The company now knows that the employee has a disability. To comply with the ADA, employers should talk to the employee about other accommodations that could work.