Download This PaperReefer Madness: The Legal Quagmire of Medical Marijuana in the Workplace
Southern University Law Review, Forthcoming
31 Pages Posted: 1 May 2020 Last revised: 5 May 2020
Date Written: January 13, 2020
Abstract
The film ‘Reefer Madness’1 propagandized the evil effects of marijuana in the 1930s.2 Nearly 83 years later, marijuana is largely decriminalized, chiefly for medicinal purposes. Less melodramatic than the side effects portrayed in Reefer Madness is the reality of how employment law will be impacted by medicinal marijuana use.
Ordinarily, the Americans with Disabilities Act (“ADA”) would sufficiently address employee protections and permissible adverse employment actions, and, where it fails to provide guidance, surely state law would fill the gap. However, the current state of marijuana law presents a bizarre dilemma: how does a local or state jurisdiction regulate a medically and lawfully recommended drug that is outlawed federally? Does marijuana’s federal classification as a Schedule I drug permit an employer to claim preemption under the Supremacy Clause of the Constitution to avoid liability for adverse employment actions, such as discrimination, when state law would otherwise permit damages to be awarded? Where does an employee find balance between medical necessity and an organization’s business risk associated with medicinal side effects of marijuana? Why is reasonable accommodation even a legal answer for a drug used off site and after work hours?
The current answers to these questions are divisive, pitting employer against employee and circuit against circuit. Yet the application of employment law is not at conflict with federal mandates. As this article will argue, the shortcomings of the ADA can therefore be remedied by applying an equitable balancing test to medical marijuana discrimination claims.
Keywords: medical marijuana; THC; CBD; reasonable accommodation; employment discrimination; Article VI of the United States Constitution; reasonable accommodation; ADA; Americans with Disabilities Act; adverse employment action; business necessity; disability discrimination; drug-free workplace
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