Alabama Legalizes Medical Marijuana While Allowing Employers Discretion as to Participating Workers

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On May 17, 2021, Governor Kay Ivey signed Alabama’s new medical marijuana law, known as the Darren Wesley ‘Ato’ Hall Compassion Act, making Alabama the 37th state to legalize marijuana for medical purposes. The law identifies specific qualifying medical conditions, including but not limited to autism spectrum disorder (ASD); cancer-related cachexia, nausea or vomiting, weight loss, or chronic pain; Crohn’s disease; depression; epilepsy or a condition causing seizures; and HIV/AIDS-related nausea or weight loss. While the law grants individuals with these health conditions access to medical marijuana, it provides almost no employment protections for doing so, and imposes no new obligations on employers.

No New Employment Protections

As more states have enacted medical marijuana programs, they have taken varying approaches on employment protections for participating individuals. Alabama’s new law makes it clear that, in the employment context, there are no new legal protections or recourse for individuals who use medical marijuana. To that end, one of the law’s stated purposes is to “balance the needs of employers to have a strong functioning workforce with the needs of employees who will genuinely benefit from using cannabis for a medical use in a manner that makes the employee a productive employee.”

The new Alabama law continues several key provisions making it clear that employers may continue to prohibit marijuana use as part of their drug-free workplace policies, including:

  • Drug Testing and Drug-Free Workplace Policies.  Alabama employers are still permitted to establish and enforce drug testing and drug-free workplace policies. Employers may refuse to hire, discharge, discipline, or otherwise take adverse action against individuals who use medical marijuana, regardless of whether the individual is under the influence from such use.
  • Notification of Status as a Card Holder.  Employers can require employees to notify the employer if the employee possesses a medical cannabis card.
  • Accommodations for Medical Marijuana Users. Employers are not required to permit, accommodate, or allow the use of medical marijuana or modify job or working conditions for employees who use medical marijuana.
  • Relationship to DOT and Other Federal Regulations. The law specifically states that it does not interfere with, impair or impede any federal restrictions on employment, including but not limited to those established pursuant to the United States Department of Transportation regulations.
  • No Private Right of Action. The law expressly states that it does not establish a private right of action for individuals to pursue legal action against an employer related to any actions the employer takes due to an individual’s use of medical marijuana.
  • Relationship to Workers’ Compensation and Unemployment Benefits. The law explicitly provides that employers can continue to receive workers’ compensation premium discounts for maintaining drug-free workplace policies pursuant to the Alabama workers’ compensation statute.  Furthermore, employers may continue to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test. Finally, the law provides that an individual who is discharged from employment based on their use of medical marijuana, or refusal to submit to or cooperate with a drug test, will be “legally conclusively presumed to have been discharged for misconduct” for purposes of unemployment benefits if certain conditions are otherwise met.

Physicians Required to Notify  Patients of Employment Risks

Alabama’s law requires physicians who certify individuals as having qualifying medical conditions to obtain the patients’ written consent to use medical cannabis. The physicians must use a standardized consent form that advises patients that “the use of medical cannabis could result in termination from employment without recourse and that costs may not be covered by insurance or government programs.”

Managing for Compliance

While the new law does not mandate specific changes, Alabama employers should review their internal policies and practices regarding applicants and employees who use medical marijuana.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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