Organizations are facing new issues regarding marijuana, as more and more states legalize medical and, in some cases, recreational use. Since marijuana in any form is still illegal under federal law, this can put organizations in a difficult position. Issues may arise if the organization serves children or adults who have illnesses that are treated with medical marijuana. Community organizations often have drug-free policies for both staff members and clients so this can create conflict. Here are a few things for organizations to consider.
Since marijuana use is still illegal at the federal level, state laws allowing marijuana use protect users from prosecution from state laws only. Federal law banning marijuana would still apply. Refusing to hire an employee or turning away a client due to medical marijuana use could bring civil rights claims against the organization. However, since federal law preempts state law, these claims have historically been overturned. The Americans with Disabilities Act (ADA) and other civil rights claims are generally federal claims. So, typically, employers can still require their employees to be drug-free. In Arizona, Illinois, and Minnesota, however, there are laws prohibiting employers from discriminating against individuals who are authorized to use medical marijuana. These laws do not require employers to allow employees to use or possess marijuana during work hours.
It’s up to organizations to know and understand their states’ medical marijuana laws and also their states’ civil rights laws. Once this is clear, a decision can be made if the organization is going to accommodate or exclude those who are using medical marijuana. This policy should be followed in all situations, especially if the organization decides to drug test employees. For more information about drug testing, check out this resource.
If the organization decides to accommodate employees and clients who use medical marijuana, there are a few things to consider. Keep in mind some activities may be dangerous for individuals using marijuana. A camp, for example, may want to decide which activities are safe and which are not safe for children being treated with marijuana. Organizations must also consider the consequences and liability if a staff member is impaired. For example, employers can still prohibit employees from driving while under the influence.
If an organization is going to accommodate medical marijuana, it’s important to understand the state restrictions for use. For example, organizations should know the amount that can be possessed at one time, the allowable forms of medical marijuana, who may administer doses of medical marijuana to clients, and any registration requirements of their state. However, under no circumstances should anyone at the organization be charged with administering medical marijuana.
Organizations allowing medical marijuana use by employees or clients should require proof of registration of the patients and caregivers if their state law requires it. They should require that, if the client is a minor, they have a caregiver (not anyone affiliated with the organization) either onsite with them or who is responsible for administering their marijuana. The organization should require that medical marijuana be stored and dosed off site. Staff can be provided with a record of each dosage, if needed by the client. No staff members at the organization should be designated with the state as a “caregiver” for any client receiving medical marijuana.
Any organization allowing clients to use medical marijuana should require the client (or their parent if a minor) to sign a waiver releasing the organization from any liability stemming from the use of medical marijuana. They should also sign a release acknowledging that the organization is not responsible for administering the marijuana to the client.