A push among various states to legalize medical marijuana use can create issues for hoteliers and other employers.
REPORT FROM THE U.S.—Hoteliers and other employers have a complicated situation to wade through as more and more states pass laws to make medical, and in some situations recreational, use of marijuana legal.
A recent webinar from Hospitality Financial Technology Professionals titled “Reefer Madness: Legalized Marijuana and the Workplace” tackled the issue and flagged some issues hoteliers should be aware of.
1. State-federal conflict
Attorney Gregory Hearing, of Thompson, Sizemore, Gonzalez & Hearing, said differences between the federal law and state and local regulations regarding marijuana use can be confusing for employers.
He said this has left many questioning whether they’re required to accommodate marijuana use for employees who are prescribed medical marijuana based on the Americans with Disabilities Act, since that law requires employers to “provide a reasonable accommodation to a qualified individual with a disability.” He said this isn’t the case.
He said there are two important factors here: The federal government regards marijuana as a controlled substance, and the ADA is federal law. The ADA has a caveat that employers aren’t required to allow the use of “illegal drugs” as defined by the federal Controlled Substances Act. Effectively, that means employers don’t have to allow marijuana use based on the ADA.
“Employers can take comfort if they don’t allow it,” he said.
2. State laws differ
Hearing noted the rules are quickly changing and the number of states allowing medical marijuana has reached “critical mass,” with more than half of states legalizing it in some form.
State laws vary greatly, he said, and set different rules for what marijuana can be prescribed for and how employers must treat it.
Despite interpretations of federal law, several states including New York, Arizona, Minnesota, Illinois, Delaware, Maine, Nevada and Connecticut require employers to accommodate the use of medical marijuana.
Some other states—Washington, Oregon, Michigan, Montana, Colorado and Florida—say employers are not required to accommodate medical marijuana use, while states like California, Maryland, Massachusetts and New Mexico don’t clarify one way or another.
3. Impairment may create issues
Hearing noted accommodation requirements could create issues for employers depending on what their employees’ duties are. He noted use of marijuana leaves employees effectively impaired, which can be problematic.
He said this is exacerbated by the fact many states put no restriction on the amount of THC allowed n medicinal marijuana.
“In Florida, there’s no limit on THC, and employees who want to come back to work could be high because they took it,” he said. “The question is, do you have to accommodate that? That argument you can make is that even with offsite use the effect of the use is in the workplace. (And in some places) you can prohibit the effect in the workplace.”
He said this is especially important in jobs in which impairment “may be a significant risk to the health or safety of others.”
4. Conflicts with other laws
Hearing said it’s important to watch out for laws that conflict with newer laws permitting marijuana use.
He once again pointed to federal law in citing the Drug-Free Workplace Act, which requires federal contractors to “keep the workplace free of illegal drugs” as defined by the Controlled Substance Act. He said drug testers themselves have the latitude to regard a positive test for marijuana as a negative if the person tested notes they have a legal prescription for the drug.
He also noted there is some conflict with the Family Medical Leave Act, which allows employees to take protected leave for medical reasons. He said questions remain about how employers can regard marijuana use during FMLA leave.
5. Federal enforcement remains
It’s important to remember that regardless of state and local laws, there is the possibility of federal enforcement since marijuana remains classified as a controlled substance, he said. Employers and citizens are left to read the tea leaves on how the drug will be treated in terms of federal law enforcement amid changing political opinions, he said.
He said a U.S. Department of Justice rule that prohibits budgeting for marijuana enforcement has expired. Comments made during the presidential campaign could be useful in divining what enforcement will look like, he added.
“The new administration is not going to be pursuing medical marijuana because of what (President Donald) Trump said (on the campaign trail), but they are going to be pursuing recreational marijuana in certain instances even though it’s permitted by state law,” he said. “It’s still a violation of federal law to use or possess it.”