What Rights Do you Really Have as a Medical Cannabis Patient in the Workplace?

hat happens when you have anxiety
problems and the only way to alleviate them is by using medical cannabis? Given
the situation, an employer should verify the employee’s doctor’s recommendation
and let them smoke in a designated area, but most companies don’t. Felicia Reid
of Hirschfeld Kraemer LLP say workplaces, “nearly without exception”, ban
cannabis in the office because it “impacts productivity” and could pose a
threat to others.

In California, employers are legally
obligated to accommodate employees with medical conditions or disabilities, yet
cannabis is still illegal in the workplace and on a federal level. California’s
Compassionate Use Act guarantees that people who use medicinal cannabis, upon
the endorsement of a doctor, are not subject to criminal prosecution.

In 2008, a California Supreme Court decision ruled that the Compassionate Use Act does not apply to
cannabis – even for medical reasons. “Under California law, an employer may
require pre-employment drug tests and take illegal drug use into consideration
in making employment decisions,” the court said.

Companies may forbid employees from
possessing or smoking at work, but are prohibited from firing the employee
based on their medical condition.  

 “Neither federal nor state law prohibits
employers from disciplining or terminating employees for marijuana use, even
when the drug is used to treat a disability in accordance with California’s
medical marijuana law,” said director of the disability rights program with the
Legal Aid Society-Employment Law Center, Jinny Kim, to the San Francisco Chronicle.

Granted, Kim asserts that some
employers have discriminatory policies against those with medical cannabis
cards.

On Jan. 13, 2014, Justin Shepherd, an
employee at Kohl’s distribution center in California, was injured on the job
and went to the company’s healthcare provider for workers’ compensation,
whereby he was subsequently given a drug test. Four days later, Shepherd was
fired due to “minimal amounts of marijuana metabolites” that were shown in his
drug test, according to court documents. During a meeting with Kohl’s
management, he showed them his doctor-signed medical cannabis prescription, but
was terminated two days later.

Nevertheless, under Section K, which
applies to all states with medical cannabis laws, “No person will be
discriminated against in hiring, termination or in imposing any term or
condition of employment or otherwise be penalized based upon either (a) the
Person’s status as a registered medical marijuana cardholder; or (b) A
registered medical marijuana cardholder’s positive drug test for marijuana
components or metabolites.”

Cannabis in the workplace is a
hot-button issue that’s been plaguing employers in the wake of cannabis
legalization for years. If policies aren’t instilled to protect workers’
rights, more instances like Shepherd’s will be a common occurrence.