Pennsylvania is about to become the second Commonwealth in the United States to legalize medical marijuana. (23 states — la di da, states — plus DC currently allow it)
Does this mean that employees with migraines can puff vape pens and eat Cheetos in your break rooms at work? Actually, I’m pretty sure that’s not how it works.
I’ve blogged (here) that grilling a medical marijuana user about her disability, just before firing the employee, could give rise to a viable disability-discrimination claim. In other words, where the disability (as opposed to the medical marijuana use) motivates the employment action, that’s discrimination.
I’ve blogged before (here) that the Americans with Disabilities Act does not protect illegal drug use by employees. So, if the illegal drug use, and not the disability, motivates a company to fire an employee, that’s perfectly legal.
An alcoholic employee can present a number of tricky legal issues affecting the workplace. Under the Americans with Disabilities Act, there’s a certain dichotomy. That is, alcoholism is a disability under the Act. However, an employer can ban alcohol in the workplace and require that employees not be under the influence of alcohol.
But what about an alcoholic employee, who, while remaining sober at work, seeks a leave of absence to treat?
Ok. Let’s assume that I’m looking to fill another Blogprentice position here at the Bloggerdome.
[FYI – The Blogprentice’s job is to massage my scalp during those brief periods of writer’s block or when I get the vapors, rub my feet at all other times, plus whatever tasks, reasonable or unreasonable, I may assign from time to time. Job pays minimum wage. And, by that, I mean compliments. That is to say, part of the job is to compliment me. Another part is to make sure I’m using compliment correctly (instead of complement)].
All hires must then pass a background check and drug screen. Continue reading
After the jump, what employers can learn from a possibly botched drug test and the failure to hire a Rastafarian
(Or an excuse for me to make gratuitous True Romance references).
Today, we have a guest blogger at The Employer Handbook. It’s Melissa Kluska. Melissa currently writes for St. Jude Retreats, a non 12 step alternative to traditional alcohol and drug rehab. As well as writing for St. Jude’s, Melissa enjoys blogging about health and relationships.
(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).
Ordinarily, I’m reluctant to recommend online modules that help HR professionals create workplace policies.
Like the one I used to create a Borat Workplace Dress Code. Maybe it was the alcohol talking, but I was certain that the one-piece, over-the-shoulder, male swimsuits wouldn’t create a donning and doffing FLSA issue.
Hey, this post got weird quick. Didn’t it?
According to a federal appellate court from California, a state that has embraced marijuana as an effective treatment for individuals who face debilitating pain, an employer may discriminate against an employee because of the employee’s use of marijuana. This holds true whether the marijuana use is recreational or medicinal, because the Americans with Disabilities Act does not protect illegal drug use.
However, there are instances in which the ADA does protect medical-marijuana users. For example, an employee who uses medical marijuana to treat glaucoma may be discriminated against because of the employee’s marijuana use, but not the glaucoma. Assuming that: (a) the glaucoma is a disability; (b) the employee can perform essential job functions with or without a reasonable accommodation; and (c) and the employer takes an adverse employment action against the employee because of the glaucoma, the employer has violated the ADA.
For more on the CA case, check out Robin Shea’s post at the Employment and Labor Insider. For more on the interplay between medical-marijuana use and state disability-discrimination laws, check out this post I did last year.
Stop me if you’ve heard this one before:
- Job candidate is told that any job offer is contingent upon passing a drug test.
- On d-day, job candidate bolts from the drug-testing facility, claiming that he has trouble in confined spaces.
- No drug test means that job candidate is disqualified from the position.
- Job candidate sues claiming a violation of the Americans with Disabilities Act for failure to accommodate.
Folks, I couldn’t make this stuff up if I tried. Just another day in the life of an employment lawyer.
After you hit the jump, you’ll find out whether the job candidate prevailed…
“I know you don’t smoke weed, I know this; but I’m gonna get you high today, ’cause it’s Friday; you ain’t got no job… and you ain’t got sh*t to do.” – Smokey from Friday (1995).
Back in 1995, when Smokey was trying to convince his buddy Craig to get high, California had yet to decriminalize marijuana for medical use. Now, a number of states have legalized medical marijuana.
But what happens when medical marijuana use results in a positive drug test at work? Is the company allowed to fire that employee?
Find out, after the jump.
The Employer Handbook Blog