Does the Americans With Disabilities Act (ADA) protect medical marijuana users? This fact-filled article clears the haze around this contentious issue.

The Americans with Disabilities Act protects disabled workers from excessive workplace discrimination and requires employers to provide the "reasonable accommodations" necessary for disabled employees to continue contributing productively to the company's mission and goals.

But does it require employers to tolerate an employee's marijuana use, when that use is "medical" in nature?

With increasing numbers of states permitting the use of medical marijuana, companies throughout the country are asking this question. Here's what you need to know:

Understanding the ADA on Drug Use

The Americans with Disabilities Act (ADA) states that a person who is currently using illegal drugs does not qualify as "disabled" under the law, and therefore, employers do not have to provide reasonable accommodations for the illegal drug use. However, the ADA also states that drugs "taken under supervision by a licensed health care professional" are not a form of "illegal drug use."

So when an employee is licensed to use medical marijuana, does the ADA protect them?

Currently, there is no clear legal answer from the federal government. Marijuana use of all types is currently prohibited by the federal Controlled Substances Act, so it would appear that marijuana is still classified as an "illegal drug" as far as federal laws (including the ADA) are concerned. This was also the conclusion made by the Colorado Supreme Court in a recent case.

The regulations that apply to certain jobs also may affect marijuana use. For instance, commercial truck and bus drivers are generally subject to the regulations set forth by the U.S. Department of Transportation (DOT), which has a zero-tolerance policy for drug use on the job. Companies that employ drivers who are subject to DOT regulations may enact a similar zero-tolerance policy in order to stay compliant with DOT rules.

What the States Have to Say

Currently, the use of medical marijuana has been decriminalized in 23 states and the District of Columbia. If you operate business offices in one or more of these states, you'll need to examine your state's or city's medical marijuana rules as well as understanding the federal law.

Why? Because several states have included accommodation clauses in their statewide medical marijuana law. In other words, even though the Americans with Disabilities Act doesn't protect employees from adverse actions based on their marijuana use, some state medical marijuana laws do. Employers who seek to fire the employee based on their medical marijuana use may find themselves in violation of the state's accommodation law, even if they are not violating the ADA.

When Employment Policies Need Attention

When drafting or updating your employment policy, keep these tips in mind:

• Know the rules. Federal law still prohibits the use of marijuana, but several states and some cities have created their own rules based on state or local laws. Understand the rules that apply to each business location before updating drug policies. Talk to a lawyer if you have specific questions.
• Make safety a company priority. Regardless of the rules in your area, all fifty states will allow an employer to terminate an employee if the employee's marijuana use is jeopardizing the employee's safety or the safety of others.
• Maintain a drugs-free workplace. Employers are generally not required to permit the use of marijuana or other drugs on-site. A smoke-free or drug-free workplace also promotes the health of your staff and protects those sensitive to the effects of secondhand smoke.

Your staffing partner can also help by screening candidates and checking their criminal records for a history of drug use. When you engage temporary or contract employees, your staffing firm also serves as the employer of record, taking responsibility for drug testing of those workers. While a workplace drug policy is essential, your staffing partner can help you find the right people for each job.