Employers are not required to accommodate marijuana use under the Americans with Disabilities Act (ADA). The ADA does not require employers to accommodate an employee's current use of any illegal drugs, including marijuana. However, if an employee has entered into a substance abuse treatment program for an addiction to marijuana, an employer will probably have to allow the employee to complete the treatment program as a reasonable accommodation.
Currently twenty states, including the District of Columbia, have legalized marijuana for medical use. In addition, Colorado and Washington State have legalized the "recreational" use of marijuana. The legalization of marijuana presents several issues with which employers will have to contend. This article will address the federal government's response to state marijuana legalization, state laws affecting employers' rights to restrict marijuana possession and use by their employees, and recommendations for employers seeking to regulate marijuana possession and use by their employees.
In November 2012, Colorado and Washington became the first states to legalize possession of small amounts of marijuana for recreational use. Shortly thereafter, in a rare sign of bipartisan cooperation, Congressional Representatives Dianna DeGette (D) Denver, Colorado, and Mike Coffman (R), Aurora, Colorado, introduced the "Respect States' and Citizens' Right Act" into Congress. This proposed legislation would exempt states that have legalized marijuana from the provisions of the Federal Controlled Substances Act (CSA). Pursuant to the CSA, marijuana is classified as a Schedule I controlled substance, putting it in the same category as cocaine, LSD, heroin, and ecstasy. Physicians can prescribe Schedule II through V controlled substances; in contrast, marijuana remains illegal under federal law and cannot be prescribed by a physician. The "Respect States' and Citizens' Right Act" is still pending.
The Federal Government's Response
On December 14, 2012, in an ABC television interview with Barbara Walters, Walters asked the President his opinion of the legalization of marijuana in Colorado and Washington, to which the President responded, "We've got bigger fish to fry." Nevertheless, President Obama directed Eric Holder, US Attor ney General, to review the conflict between existing federal law under which possession and use of marijuana is illegal with state laws that have legalized limited amounts of marijuana for either medical or recreational purposes.
In February 2013, Holder said that the Department of Justice is in the process of formulating a response to the legalization of marijuana in Colorado and Washington. To date, the Department of Justice has not announced any opinions concerning state legalization of marijuana. If the Department of Justice decides to enforce the CSA, the Department of Justice could sue Colorado and Washington on the basis that the CSA preempts these states' legalization efforts. The Department of Justice previously employed this litigation strategy in suing Arizona over its enactment of immigration laws. For now, marijuana distribution, possession, and use remain illegal under federal law in all states. Only Congress can...