Louisiana over several years has rolled out a medical marijuana program, including this year’s expansion to include raw, smokable cannabis, and many states have fully legalized marijuana for recreational use by adults.
Yet many companies, including many that operate in multiple states, test their employees and potential employees for drugs. How employers should handle greater acceptance of marijuana is “still a developing question,” says Rachael Jeanfreau, a partner with Breazeale, Sachse & Wilson whose practice includes employment law.
Marijuana remains illegal under federal law. Under the federal American with Disabilities Act, employers are not required to accommodate illegal drug use, she says.
However, Louisiana has a state disability discrimination law. A worker who is fired because of their medically recommended marijuana use might sue under state law, Jeanfreau says.
Mississippi law states employers are not required to accommodate marijuana use, but Louisiana has not created a similar carveout, she adds.
“[Employers] are not required to accommodate on-the-job use or impairment at work under any circumstances,” says Erin Kilgore, a partner in Kean Miller’s labor and employment law group.
Workers subject to U.S. Department of Transportation regulations have additional restrictions on top of the federal law. But for other employees, Kilgore says employers should engage in an “interactive process” with workers who use medical marijuana, just as they would with other medications or conditions, to see if it’s detrimental to their job.
“It’s meant to be a back-and-forth discussion between the employer and the individual, and usually a physician, in order to arrive at a way to keep the employee working,” she says.
Drug tests can detect marijuana usage from weeks or months before. If an employee gets in a wreck in a company car and tests positive, it’s hard to prove they weren’t impaired at the time.
Kilgore and Jeanfreau say they aren’t aware of any cases that could help clarify how Louisiana courts will handle these questions.