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Medical Marijuana & Disability Discrimination

The use of marijuana for medical purposes is still a relatively new phenomenon. As of this writing, it is only permissible in 33 states, for a handful of purposes. However, as more and more states continue to entertain its use, questions are being raised about the role medical marijuana may have in treating certain disabling conditions. By enforcing state marijuana laws, some employers are running afoul of the Americans With Disabilities Act (ADA).

Courts Have Sided With Employers

Cannabis is legal for medical purposes in 33 states, but what most people are not aware of is that while its use is legal if a person goes through the appropriate channels to access it, that confers no protections in the workplace. Most employers still frown on the use of any kind of drugs in the workplace, which is understandable. But many employers are taking steps to terminate employees who use medical marijuana outside of work, including those with diagnosed disabilities. Some of these cases are beginning to go toward employees as a result of what courts tend to see as overreach.

For example, a case in New Jersey arose when an employee was involved in a work-related auto accident. He was prescribed painkillers, but chose to use marijuana, which he had a license for due to a 2015 cancer diagnosis. His employer advised him that “corporate couldn’t handle” his use of marijuana and subsequently terminated him. The employee sued, arguing that his employer had discriminated against him due to his disability and lawful use of marijuana to treat it. The Superior Court ultimately determined that the employer had not engaged with him on a “meaningful level” before termination, reversing the lower court’s ruling.

Status In South Carolina

As of this writing, no medical marijuana law exists in South Carolina, but that may change in 2020. For the last five years, State Sen. Tom Davis has attempted to bring a Compassionate Care Act, similar to those in force in New Jersey and other states, to the floor of the South Carolina legislature. The vote has just recently been pushed into early 2020. However, opposition to its passage has been waning. South Carolina voters are firmly in favor of legalization for the treatment of specific conditions.

What does this mean for disabled workers who might qualify for medical marijuana programs? At this time, it means that you need to understand your rights under South Carolina law and also under the Americans With Disabilities Act (ADA). More specifically, it may mean that you are entitled to reasonable accommodations at work if it would not be an undue burden to your employer, and also that you have the right to treat your illness—but marijuana law is currently in flux. The specific facts of any allegedly discriminatory episode must be taken into account before moving forward.

Contact An Employment Discrimination Lawyer

Medical marijuana may not be legal in South Carolina yet, but it is critical to be aware of your rights and your options should that change, or if you are new to the state and need marijuana to treat your disability. If you have questions about disability discrimination in employment, attorney A. Christopher Potts has been handling discrimination cases for years. He will be happy to sit down with you to discuss your situation. Contact Hitchcock & Potts today to schedule an appointment.

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