Ask the Experts: Use of Medical Marijuana During Lunch Breaks

Question: We have a long-time employee who is undergoing painful chemo treatments for cancer and has received a medical marijuana card for treatment of pain. We learned that he regularly smokes marijuana during his lunch period. Are we required to permit this behavior?

Answer: No, a medical marijuana card does not entitle an employee to use marijuana during working hours. Even if he’s using the drug during an unpaid break period and off company premises, you are not required to accommodate his use if he is returning to the workplace under the influence of the drug. Marijuana continues to be an illegal drug under federal law and employers are not required to permit the use of the drug in the workplace, even by state-issued card-holding users.

We always recommend being sympathetic during an employee’s major illness. You should make efforts to reasonably accommodate his serious health condition so he may continue to be a valued employee; however, under no circumstances are you required to allow his cannabis use while working, in the workplace, or during working hours. Of special concern is whether his job requires the use of heavy equipment, vehicles, or any other safety issue because being under the influence directly impairs his ability to safely use these instruments. Best practice is to have a clear workplace policy that outlines your zero tolerance policy in the workplace and the adverse employment consequences if an employee is in violation of the policy. Remember to check applicable state law because some states prohibit employers from discriminating against an applicant that is a registered medical marijuana card holder and may also prohibit employers from automatically terminating an employee who tests positive for marijuana on a drug test.