Alabama’s medical marijuana law — the Darren Wesley ‘Ato’ Hall Compassion Act — was signed into law on May 17, 2021. We are waiting on the Medical Cannabis Commission to set up rules to implement the program. Thus, employers have some time to consider its implications on their workforces.
In comparison to some other states’ medical marijuana laws, which contain prohibitions against taking action against employees for the medical use of marijuana, Alabama’s law may be described as very employer friendly. Nevertheless, even though Alabama employers are not faced with prohibitions, they are faced with the challenge of making decisions about what they will do when employees begin the lawful use of medical marijuana in the state.
What Are the Basics?
Qualifying patients, caregivers and medical cannabis establishments and their staff are not subject to criminal or civil penalty for actions authorized under the law. To be a qualified patient, the patient must apply for and receive a medical cannabis card. Qualifying conditions are: Autism Spectrum Disorder; Cancer-related cachexia, nausea or vomiting, weight loss or chronic pain; Crohn’s Disease; Depression; Epilepsy or a condition causing seizures; HIV/AIDS-related nausea or weight loss; Panic disorder; Parkinson’s disease; Persistent nausea that is not significantly responsive to traditional treatment (with some exceptions); Post Traumatic Stress Disorder; Sickle Cell Anemia; Spasticity associated with a motor neuron disease, including Amyotrophic Lateral Sclerosis; Spasticity associated with Multiple Sclerosis or a spinal cord injury; a terminal illness; Tourette’s Syndrome; and a condition causing chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or has proved ineffective. Physicians must be authorized to certify patients for a medical cannabis card by the State Board of Medical Examiners through criteria established by the board.
Employer Friendly Provisions
The law does NOT:
- Require medical coverage to pay for medical cannabis.
- Require an employer to permit or accommodate medical cannabis.
- Prohibit an employer from taking any adverse employment action based on the use of medical cannabis.
- Limit an employer’s enforcement of a drug testing policy.
- Prohibit an employer from requiring employees to provide notice of use.
- Interfere with federal employment restrictions, including DOT regulations.
- Authorize legal action against an employer for taking an adverse employment action based on use.
- Affect the worker’s compensation premium discount for employers who establish a qualified drug-free workplace policy.
- Affect an employer’s right to deny or present legal defenses to the payment of worker’s compensation benefits due to a positive drug test or refusal to submit under existing law.
Further, an individual who is discharged for use of medical cannabis or for refusal to submit to a drug test will be conclusively presumed to have been discharged for misconduct under unemployment compensation law. An employee who is injured or killed is ineligible for worker’s compensation benefits if the injury or death occurred due to impairment from medical cannabis, which is conclusively presumed by a positive federal Department of Transportation drug test or if an employee refuses to submit to such a test.
Contrasting Federal law
Certain Alabama employers must stay mindful of federal law when deciding how to react to state legalization of medical marijuana. Under the federal Controlled Substances Act, marijuana is prohibited as a Schedule 1 illegal drug. Federal contractors are subject to the Drug Free Workplace Act (DRWA), which obligates federal contractors to provide a drug-free workplace under federal law. The DRWA, however, does not require discipline or termination of employment for those who violate federal drug laws, but rather only requires some form of sanction, which could be mandatory counseling or participation in an employee assistance program, for example. Moreover, the DFWA does not mandate testing and does not require a drug free policy outside the workplace. Of course, employers who are subject to federal Department of Transportation regulations for their commercial drivers have mandatory testing obligations and prohibitions against use of illegal drugs under federal law.
Some courts have held that the federal Americans with Disabilities Act does not protect or require an accommodation for the medical use of marijuana. Thus, for now, Alabama employers may not be faced with a mandatory accommodation obligation for employees who use medical cannabis under either state or federal law.
The Choice Facing Some Alabama Employers
Some Alabama employers are not subject to a mandatory obligation to prohibit medical use of marijuana either through applicable federal regulations or in the case of safety sensitive positions where a safety issue may arise face some choices. Consider this example: An office employee has suffered from chronic pain where traditional conventional therapeutic intervention and opiate therapy has proved ineffective. The employee is subject to random drug testing as part of the employer’s general commitment to a drug free work policy, but not due to any federal law regulations. The employee tests positive for marijuana. The employee presents her medical cannabis card to explain the positive test. In addition, the employee’s work performance is exceptional. Although the employer is not prohibited under Alabama or federal law from taking action against the employee or event termination from employment for medical marijuana use, what will the employer decide to do? These are the type of decisions Alabama employers will need to consider and be prepared to answer.
Doug Kauffman, a partner and member of Balch & Bingham’s Labor & Employment Practice, helps employers manage their most valuable assets — their employees. For more than 20 years, he has counseled large and small employers, helping them stay up to date on the law, regulations and best practices with respect to employment compliance. Kauffman also handles complaints or audits by various government agencies, such as the EEOC, the Department of Labor and the Immigration and Customs Enforcement, and he litigates all employment issues in court.
