Employers curbing pot use navigate bias laws

Managing or prohibiting marijuana use in the workplace is complicated by state and federal disability and privacy laws. 

Employers may fear running afoul of the Americans with Disabilities Act, which states that workers may not be discriminated against because of medical conditions, said Brian Allen, Salt Lake City-based vice president of government affairs for Mitchell Pharmacy Solutions, an Enlyte Group LLC subsidiary.

Ascertaining whether construction workers have medical marijuana cards can also be difficult because of protections under the Health Insurance Portability and Accountability Act.

It remains unclear whether information can be shared because marijuana remains illegal at the federal level, so the drug’s use may not be considered protected health information even in states where it is legal. 

Jenifer Kaufman, an Abington, Pennsylvania-based workers compensation claimants attorney, said employers would likely defer to state medical marijuana laws and state-level HIPAA equivalent statutes. 

Pennsylvania’s medical marijuana law, for example, states that employees who fail drug tests cannot perform jobs where they are in control of chemicals, work at great heights or within confined spaces, or deal with high-voltage electricity, Ms. Kaufman said. 

“Your (medical marijuana) card does not mean you don’t have to take a drug test like everyone else,” she said. “It’s not a get-out-of-jail-free card.” 

But it can be difficult for employers in states that legalized both medical and recreational marijuana to differentiate between workers with medical cards and those who use the drug recreationally, Mr. Allen said.