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eLABORate: April 20th Puts Medicinal Marijuana Laws in High Focus

April 20, 2017

Employers should know that popular culture celebrates April 20th a/k/a “Four-Twenty” as an unofficial holiday. Four-twenty is a code term that refers to the annual consumption of marijuana and the celebration of cannabis culture. Observances that revolve around the number 4:20 include smoking or ingesting marijuana at 4:20 p.m. and during other portions of the day. Because employers may anticipate an unusual number of “call-ins” and/or “no-shows” on April 20th, it is time to review the medicinal marijuana laws and drug testing statutes that impact employment eligibility and other workplace issues.

Can We Fire Employees who Use “Medicinal Marijuana”

Medicinal marijuana is technically legal under La. R.S. 40:1046. A physician licensed to practice in Louisiana may prescribe marijuana to a limited class of patients suffering from glaucoma symptoms or chemotherapy-induced side effects. Hence, medicinal marijuana therapy is currently restricted to a limited set of ailments in Louisiana.

To issue the prescription, the physician must have authorization from DHH and a DEA license to issue Schedule I substances. Accordingly, if a job candidate presents a valid medicinal marijuana prescription, then that fact should not preclude employment eligibility. However, Louisiana employers facing this issue should be aware: most of the pertinent Louisiana state agencies have not yet regulated marijuana production, and distribution of medicinal marijuana in Louisiana is effectively moot.

What if My Employee has a Marijuana Prescription from Colorado or Another State

Approximately 23 states and the District of Columbia currently have laws legalizing marijuana in some form. While Constitutional guarantees of full faith and credit normally require states to respect the public acts, records and judicial proceedings of every other state, this premise has not yet been extended to medicinal marijuana prescriptions that were written in other states. This means employees may not always rely on medicinal marijuana prescriptions written in other jurisdictions. Rather, any medicinal marijuana prescription that an employee relies upon likely must be valid in its state of use.

What about the ADA – Can Employees Request Medicinal Marijuana as a Reasonable Accommodation

Employees with disabilities may receive medicinal marijuana prescriptions from their health care providers when state-law permits such treatment. Employees who have a valid medicinal marijuana prescription may request reasonable accommodations under the ADA. For example, extended break and mealtime considerations might be reasonable accommodations for employees who lawfully use marijuana for therapeutic reasons. But absent a legally valid prescription, a medicinal marijuana accommodation request would likely constitute an undue hardship.

What Type of Drug Testing Methods May Employers Use 

Employers may use any drug screening method that is legal in their respective state. Louisiana’s drug testing statute is set forth at La. R.S. 49:1101. Urine samples are commonly used for drug testing purposes. However, a unique feature of Louisiana’s drug testing statute is the fact that human hair may be used as a sample for testing purposes. Although considered controversial by some, hair sample testing is preferred by employers in safety-sensitive operations because this testing method can detect marijuana use over longer periods of time in comparison to urine samples.