Last week, the Associated Press reported that the U.S. Drug Enforcement Administration would move to reclassify marijuana (cannabis), moving it from Schedule I, where it’s currently listed with heroin and LSD, to Schedule III, with as less dangerous doctor-prescribed drugs like (Tylenol with codeine) and testosterone.
The AP notes that this shift comes “as marijuana has become increasingly decriminalized and accepted, particularly by younger people,” noting a Gallup poll last fall that found “70% of adults support legalization, the highest level yet recorded by the polling firm and more than double the roughly 30% who backed it in 2000.”
If reclassification occurs, it may impact employers in many ways, including under Americans with Disabilities Act with respect to the duty to accommodate medical marijuana users with disabilities.
Historically, federal courts have determined that the ADA does not protect individuals with disabilities with valid medical marijuana prescriptions who lose their jobs for testing positive because the ADA does not protect individuals engaging in “the illegal use of drugs” within the meaning of the statute. The “illegal use of drugs” means “the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act,” such as anything listed on Schedules I and II.
But what if the feds move marijuana from Schedule I to Schedule III? Schedule III drugs, substances, or chemicals are drugs with a moderate to low potential for physical and psychological dependence. As the EEOC has recognized, the possession or sale of Schedule III drugs with a valid prescription is legal. Therefore, if marijuana moves down to Schedule III, an employee who uses it does not engage in the illegal use of drugs because possessing it with a valid prescription is legal under the Controlled Substances Act.
It follows then that while the ADA would not preclude an employer from drug testing for marijuana or prevent employers from continuing to forbid the use of marijuana at work as per state law, it would require an employer to accommodate an individual’s use of medical marijuana outside of work if doing so would enable the individual to perform the essential functions of the job without creating undue hardship for the employer.
Likewise, an employer may violate the ADA if, for example, it rescinds a job offer to an individual with a disability because the employer learns that they use doctor-prescribed medical marijuana consistent with state law.
According to the AP, once OMB signs off, the DEA will take public comment on the reclassification. After the public comment period and a review by an administrative judge, the agency would eventually publish the final rule.