Proposition 64 modified marijuana legal guidelines. What many don’t understand is that it didn’t change employment legal guidelines. Employers acknowledge societal norms are altering with the passing of Prop 64. A brand new period has commenced and the Household Medical Go away Act (FMLA) and People with Disabilities Act (ADA) will play a big position in how cannabis is dealt with within the workforce.
Fast Recap of Prop 64
In 1996, California turned the first state to legalize medical cannabis withthe approval of Proposition 215. In 2016, California turned one of many few states additionally to legalize leisure cannabis with the approval of Proposition 64. This proposition handed with a 57% approval ranking on November 8, 2016, and have become efficient November 9, 2016. Proposition 64 modified particular person, business, and regulatory legal guidelines relating to cannabis. Most notably it legalized the leisure use of cannabis by individuals 21 years of age and older.
Nevertheless, by its personal language, Proposition 64 doesn’t:
- Change the rights and obligations of employers to keep up a drug and alcohol free office;
- Require an employer to allow or accommodate the use, consumption, possession, switch, show, transportation, sale, or development of cannabis within the office;
- Have an effect on the power of employers to have insurance policies prohibiting using cannabis; and
- Forestall employers from complying with state or federal regulation.
Actual World Problems: FMLA
The FMLA permits eligible staff as much as 12 weeks of unpaid depart for therapy of a severe well being situation. It supplies varied definitions of what constitutes a severe well being situation. In sure circumstances, an incapacity of greater than three consecutive calendar days and an in-person go to with a medical supplier who administers a routine of constant therapy, reminiscent of prescription treatment, could be thought-about a severe well being situation. That is necessary as a result of there is a rise in medical marijuana prescriptions, but additionally—on this post-Prop 64 world—a rise in using leisure marijuana as “self-medication.” Employers are encountering extra staff on depart utilizing marijuana—whether or not prescribed or not.
In observe, employers have to be conscious that beneath the FMLA, even for an worker utilizing marijuana throughout his or her FMLA depart (no matter whether or not it’s prescribed as a part of the therapy for the worker’s severe well being situation), the employer should accommodate and grant FMLA depart for the underlying severe well being situation.
Extra Actual World Problems: ADA
The ADA requires employers to make cheap lodging for certified employees with disabilities. There are increasingly more medical circumstances that qualify as disabilities beneath the ADA for which physicians have begun prescribing medical marijuana as a therapy.
Below Federal Legislation
- The ADA doesn’t defend unlawful drug use;
- Marijuana is against the law—it stays a Schedule 1 unlawful substance; and
- The ADA supplies no exception for medicinal use of Marijuana.
Because of this the ADA solely protects drug remedies prescribed by well being care professionals when these medication are not explicitly banned by the federal Managed Substances Act.
Once more, in observe, employers have to be cautious. Though unlawful drug use just isn’t protected beneath the ADA, an employer’s obligation to accommodate a professional employee with a incapacity stays in place. Whereas an employer could act adversely in opposition to an worker for his or her unlawful drug use (not protected beneath the ADA), the employer could not topic the worker to an hostile motion due to the underlying incapacity. Employers who fail clearly to tell apart these two situations could discover themselves in litigation with one facet arguing it has the correct to implement a drug-free office, and the opposite arguing the employer’s enforcement of its drug-free coverage was merely a pretext to discriminate in opposition to his or her incapacity.
Finally, though marijuana is each authorized (beneath state regulation) and unlawful (beneath federal regulation), it doesn’t change employment regulation, nevertheless it ought to change employment practices. Employers are properly suggested to evaluation their insurance policies and seek the advice of counsel on a case-by-case foundation.
Supply JD Supra: https://www.jdsupra.com/legalnews/working-through-the-weeds-of-cannabis-61024/