Part 3: Federal Americans with Disabilities Act and Cannabis!

Federal Americans with Disabilities Act & Cannabis!

If you are an employer with 15 or more employees, you are subject to the Americans with Disabilities Act. It’s a federal law. If you have less than that under the Virginia Human Rights Act, then the amendment is that you are also subject to prohibited discrimination based on a disability. It appears in Virginia that what they’re trying to do is mimic the federal law on the ADA. What the ADA says is that you can’t discriminate against somebody based on their having a disability. Let’s suppose that they have a medical disability that requires, like any other type of medicinal response, medical cannabis oil, and they go through the whole process, and they are, in fact, using that. Then if there’s an issue, you can still discipline for performance, but if they come back and say, well, you know, I have this condition. Let’s say they have cancer and are taking treatment and the medical cannabis oil really helps them in that process. I need reasonable accommodations. You are likely, as an employer going to engage in the interactive process to understand, in fact, what medical condition the employee has.

Does that constitute a disability? Then you must determine reasonable accommodations that don’t create an undue hardship on the employer or pose a danger to the individual or others. I’m identifying that because that will be something you might have to go through if you have a situation with an employee who is using cannabis oil pursuant to a lawful certification, but what if you have someone who says, hey, you know I have back pain, and I smoke. As a result, they’re asking for accommodation. Well, the law doesn’t require you to accommodate unlawful use. Again, because the recreational use of marijuana is still not lawful either federally or in the state, you do not have to provide reasonable accommodations to someone to use marijuana as a response. Now they may still have a disability, and there may still be reasonable accommodations that you may have to explore and provide, but it doesn’t include the recreational use of marijuana.

In addition, I want to make you aware of synthetic medical marijuana. Marinol is a schedule three drug it’s available by prescription. Marinol comes from the marijuana plant itself, so the difference here is that we’re talking about THC delta-nine, the psychoactive chemical in the marijuana plant created in a lab. So chemically speaking, Marinol has no difference in terms of its composition when compared to delta 9. However, because Marinol is created in a lab and is considered an actual pharmaceutical drug, it is a Schedule three drug available by prescription, and the federal disability statutes protect the use of Marinol. Whereas the use of medicinal oil would not be. Marinol is identical to the THC that we find in the plants. So, one of the byproducts of that is if you consume Marinol, you will come back with a positive THC test. It’s going to come back the same way as if somebody was using recreational marijuana or if somebody was using the other medicinal oil that is now protected in Virginia.

The question here is, is an employer required to provide reasonable accommodation to an employee using Marinol?

The answer is yes because this is a scheduled three-drug available by way of prescription. It would be the federal laws that attach as well as the state, so even though it might seem a little strange that synthetic is protected. The actual natural plant is not. It’s something to be aware of if the employee can produce a Marinol prescription. You need to treat it the way that you would any other prescription.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance.