Despite the recent trend of state legalization and federal policy against prosecution, marijuana is still illegal under federal law.  As such, employers are not required under the Americans with Disabilities Act (ADA) to accommodate an employee’s medical marijuana use. See e.g., 42 USC sec. 12210(a) (defining “individual with a disability” to exclude an individual who is currently engaging in the illegal use of drugs).  

As a company leader, you have flexibility in establishing company policy on drug use and testing, including permitting or prohibiting the use of medical marijuana.  Will you test all employees in all positions or will you test only employees in safety sensitive positions? Will you establish a zero-tolerance or a limit-based policy? The possibilities are numerous. Make sure the policy you establish complies with any federal laws that apply to your workplace (for example, Department of Transportation regulations for commercial drivers and the Drug-Free Workplace Act for companies with federal contracts) and state-specific testing requirements (for example, a confirmation test in Nebraska prior to taking an adverse employment action). Whatever you decide, it is important to clearly state your policy in writing and disseminate it to all covered employees. We recommend discussing the reasoning behind your policy with employees, including the workplace safety risks associated with drug use.