The issue of how marijuana should be classified is set to be heard by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit next week.
This issue is important for employers and employees because of the downstream impact it could have in relation to the use of medical marijuana by employees under various state laws.
In this regard, this Blog previously reported in April 2011 that approximately 63,735 Michigan residents had registered to use marijuana for medical purposes under Michigan’s Medical marijuana statute. Nationally, it is estimated 16.7 million U.S. residents currently use marijuana, according to the most recent federal surveys.
The Current Status of Using Marijuana for Medical Purposes
Under federal law, marijuana is presently classified as an illegal schedule 1 drug. Schedule I drugs, which also include heroin, are determined not to have any current acceptable medical use.
The lawsuit challenging this classification seeks to compel the federal government to redefine how marijuana is classified and to open the regulatory doors for medical use.
The Current Status of Medical Marijuana Use in the context of the Employment Relationship
For Michigan employers and employees, the most recent announcement as to how medical marijuana will be treated in the workplace was provided on September 19, 2012, when the U.S. Court of Appeals for the Sixth Circuit held that a private employer may fire an employee who test positive for medical marijuana in violation of the employer’s drug use policy even if that employee has complied with Michigan’s Medical Marihuana Act.
In other words, the decision arising out of Casias v. Wal-Mart Stores, Inc., makes clear that medical marijuana users are not a protected class in the context of private sector employment.
What Changes Could Employers and Employees Expect if Marijuana’s Classification Changes?
Personally, I think it highly unlikely that the present challenge to the classification of Marijuana as a schedule I drug will be changed. But it certainly could make things very interesting for both employers and employees if this change were to occur.
As this Blog previously hypothesized, it would open the door for compelling legal arguments that the use of marijuana for medicinal purposes may be a “reasonable accommodation” under Americans with Disabilities Act (ADA) or its Michigan state counterpart Persons with Disability Act.
For example, under the ADA anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. Further, the ADA does not prevent employers from testing applicants or employees for current illegal drug use, or from making employment decisions based on verifiable results. But what happens if marijuana is no longer an illegal drug? Does this mean an employer would have to accommodate an employee who is authorized to use medical marijuana? Maybe. But then again, if my aunt had certain physical features, she would be my uncle.