For Employers, Medical Marijuana Poses Legal Thicket

June 29, 2015 – In The News
Corporate Secretary

Christina Stoneburner and William Bogot were featured in the Corporate Secretary article, “For Employers, Medical Marijuana Poses Legal Thicket.” Full text can be found in the June 29, 2015, issue, but a synopsis is below.

The legality of medical marijuana poses new liability issues for employers. A recent case filed by the American Civil Liberties Union can create significant changes in the field of medical cannabis litigation.

The case deals with a situation in which an employer refused to hire a worker because he legally uses medical marijuana. However, since marijuana stays in the body for a while, the use of drug tests is complicated. The American Disabilities Act is therefore tied in, as well.

Since the recent legalization of medical cannabis use in many states, liability issues with employees who use this type of medication are complicated. “If an accident occurs while the staffer is performing work for the company, liability can still attach to the employer even if marijuana use was off-site and off-hours,” said Christina Stoneburner. “The presence of marijuana alone may not prove liability for the accident.”

William Bogot commented, “State privacy laws certainly may be applicable and prohibit such inquiries but since medical marijuana is still illegal federally, federal privacy laws will not prohibit [employers’] inquiries about medical marijuana use.” This is due to the fact that asking an employee about illegal drug use is not considered a prohibited medical inquiry according to the U.S. Equal Employment Opportunity Commission’s (EEOC) guidance.

The outcome of this case will continue to develop pending the federal legalization of medical cannabis.