The DEA Puts Weed In Play

Background: Federal drug policy has lagged behind many states in recent years, with 38 states having already legalized medical marijuana and 24 legalizing its recreational use. The Drug Enforcement Agency (DEA) has continued to classify marijuana as a Schedule I drug, like heroin. Last week, the Associated Press reported the DEA plan to move marijuana to Schedule III, like doctor prescribed testosterone for example, which has fewer restrictions. The Attorney General has signed on to the change and it reflects the growing acceptance of marijuana use.  A Gallup poll from November found that 70 percent of Americans believed marijuana use should be legal, an increase from 50 percent in 2013.

What Will This Mean for Your Workplace? Historically, the Americans with Disabilities Act (ADA) does not protect the use of drugs from the DEA Schedules I and II as “illegal drugs.”  Marijuana moving from an illegal drug to a legal one, when medically prescribed,  will mean employers could have a duty to accommodate medical marijuana users under the ADA .  Employers can still test for drug use, but marijuana may have to be an accommodation if prescribed. When hiring, an employer could violate the ADA if a job offer is rescinded to an individual with a disability because the employer discovers doctor-prescribed medical marijuana consistent with state law.

When Will This Happen? The schedule change must go through the fairly lengthy federal rule making process, which includes a comment period after publication of the rule. We will keep you posted.

Questions?  We can help! Contact us about ways we can help you comply with the dizzying state and federal laws and move your business forward.