Employers Need to Update Workplace Policies After Medical Marijuana’s Move to Schedule III

The Department of Justice (DOJ) moved certain medical marijuana products to Schedule III, broadening workplace rights and employer responsibilities. Employees using prescribed medical marijuana are now protected from workplace discrimination and entitled to accommodations under federal law, including the Americans with Disabilities Act (ADA).

With medical marijuana now treated more like other prescribed medications under federal law, employers should review their accommodation, drug testing and discipline policies now.

How does the rescheduling change employers’ approach to medical marijuana use?

Prior to the rescheduling, federal authorities regarded medical marijuana as an illegal substance with no accepted medical usage and a high potential for abuse. Employers could institute a drug-free workplace and drug testing policy. They could enact adverse consequences for employees who tested positive for marijuana and did not have to provide accommodations for medical marijuana use under the ADA.

That is no longer the case. Employers now must treat the use of medical marijuana like that of other medications, such as validly prescribed opioids, under the ADA.

However, the rescheduling does not legalize all usage of marijuana. Recreational marijuana is still regarded as a Schedule I substance by federal law.

What steps should employers take to comply with the rescheduling?

When faced with a positive drug test result for marijuana, employers should carefully assess whether the result is pursuant to a valid state prescription or recommendation for medical marijuana. Employers will also need to navigate evolving state law employment protections for marijuana use. Employers should review their drug testing and drug-free workplace policies and procedures to comply with the medical marijuana rescheduling. 

Employers will also need to balance these new rights with worker protections in safety-sensitive positions and policies prohibiting employees from working while intoxicated. Any assessment, including requests for accommodation, should be made on a one-on-one basis dependent on the employee’s duties and other relevant circumstances.

Please reach out to Rebecca Sha or any member of the Phelps labor and employment team with questions or for advice and guidance.