Utah's medical cannabis program officially launched this month, and the Utah State Legislature timely enacted Senate Bill 121, which amends and clarifies various provisions of Utah's medical cannabis laws, including a pronouncement that private employers are not required to accommodate the use of medical cannabis.
The Utah Medical Cannabis Act (the "Act") passed in 2018 contained, among other things, antidiscrimination provisions protecting public employees. Under the Act, state and political subdivision employees cannot be discriminated against on the basis of their use of medical cannabis, as long as they are otherwise in compliance with the law. The law was, however, previously silent as to whether private employers would also be obligated to accommodate or tolerate medical cannabis use by applicants or employees. Senate Bill 121, signed into law by Governor Gary Herbert on February 28, 2020, amends the law to make it clear that private employers are not required to accommodate the use of medical cannabis. The new provision states:
Nothing in this section requires a private employer to accommodate the use of medical cannabis or affects the ability of a private employer to have policies restricting the use of medical cannabis by applicants or employees.
According to the Utah Department of Health, this means that "Private employees are subject to their employers' policies, which may include zero-tolerance for cannabis and/or drug testing."
Senate Bill 121 also amended the law to amend the scope of the protections for public sector marijuana users. The law now provides that "[a] state or political subdivision employee who has a valid medical cannabis card is not subject to adverse action ... for failing a drug test due to marijuana or tetrahydrocannabinol without evidence that the employee was impaired or otherwise adversely affected in the employee's job performance due to the use of medical cannabis." However, the protection for public employees does not apply where the use of medical cannabis would jeopardize federal funding, a federal security clearance, or any other federal background determination required for the employee's position, or if the employee's position is dependent on a license that is subject to federal regulations.
The obligation for public employers to accommodate the use of medical cannabis in Utah differs from current federal law. Although the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for qualified employees with a disability, the ADA does not protect or require accommodation of illegal drug use. Although the ADA protects status-based discrimination against drug-dependent individuals in recovery, marijuana is still an illegal drug under federal law with no exception for medical use recognized under the ADA.
Private employers in Utah now definitively know that they are under no legal obligation to accommodate employee use of medical cannabis, either at the workplace or away from work. Employers that do not intend to accommodate the use of medical marijuana are advised to clearly communicate their policies so employees are aware that the use of marijuana, medical or otherwise, violates company policy. Be aware that employees who ask about medical cannabis may also have underlying disabilities that may qualify them for reasonable accommodations in addition to or other than the ability to use marijuana and marijuana products.
Regardless of the choice each employer makes, managers and HR professionals should be prepared to answer questions about the company policy on medical marijuana and to engage in the interactive process with employees who raise questions about the policy due to a disability. Employers are encouraged to consult with counsel in drafting and implementing these policies and procedures.
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