(WKYT) For today’s Good Question, Rhonda asks: “On a recent broadcast, you said there was no law that protects an employee from being fired for testing positive for marijuana use. How does this work with federal ADA laws that prohibit discrimination on the job due to disabilities, since many things marijuana is used for, such as pain, PTSD, and glaucoma, are often protected disabilities?”
A few months ago, the answer would have been simple. There were no protections for any employees using medical marijuana because it was still an illegal drug on the federal level.
Federal law and disability protections
Federal law prohibits employers from discriminating against someone for reasons protected by the Americans with Disabilities Act. But federal law also says a “qualified individual with a disability” does not include anyone using illegal drugs.
Kentucky’s medicinal cannabis law has a section that explicitly says employers are not required to allow medicinal cannabis in the workplace.
Recent federal change creates uncertainty
Last month, acting attorney general Todd Blanche issued an order moving state-regulated medical marijuana products from a schedule one drug, with heroin and LSD, to a schedule three, with things like codeine and steroids. Schedule three means there is an accepted medical use. Those who are watching that change say that it could have an impact on employers.
Writing in the National Law Review, attorney Whitt Steineker said that move could take courts years to sort out when it comes to the ADA implications.
He said previously judges were clear that medical cannabis should not be accommodated because it was illegal, but courts can no longer point to that status.
Different views on protections
The Marijuana Policy Project, which is pushing to legalize cannabis, said, “The ADA should protect most employees with disabilities from being fired for testing positive for using medical cannabis as long as they are not impaired at work.”
The governor’s office has a different take. A statement from the Cabinet for Health and Family Services said, “The federal rescheduling does not, by itself, require employers to permit cannabis use in the workplace or automatically create new employment protections for medical cannabis patients under Kentucky law.”
It could take years before that issue is decided, whatever the outcome.
Any potential protections because of the schedule change would not apply to recreational marijuana. That is still illegal on the federal level.
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