Philip Toomey Advises Employers on Handling Medical Marijuana in the Workplace in Employee Benefit Plan Review
In the article, “Employers in a Quandry: Medical Marijuana in the Workplace,” published in Employee Benefit Plan Review, Partner Philip Toomey explains why employers must have a plan on how to handle potential employees using medical marijuana in and around the workplace. In the state of California, medical marijuana is legal for those with a disability and have a prescription; however, marijuana is still illegal under federal law. With that being said, “legal and clinical prescriptions still cannot overrule any sort of drug-free workplace policy that is in effect,” says Mr. Toomey.
Due to the ease of obtaining medical marijuana prescriptions, potential employees have an obligation to disclose their disability to the employer beforehand. If they do not disclose their disability, the employer has the right to turn down their employment without discrimination. On the other hand, the validity of the ailment is for the employer to decide and depends greatly on if the employee can perform the essential functions of the job. For example, if an airport has a drug-free policy and a disabled airplane pilot disclosed that he smokes medical marijuana due to an illness, he would not be able to perform the essential functions of the job; therefore, the employer could turn down his employment.
To protect a company from potential disability lawsuits, Mr. Toomey advises, “With proactive planning, such as clear job descriptions, and understanding how to determine whether a disability is valid, employers can more freely exercise their federal rights.”
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