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"Changing Currents in Employment Law" is the D.C. Bar's annual three-hour event featuring legal updates and practice tips from the area's top employment attorneys — all for CLE credit. TELG's Scott Oswald serves as faculty director and will moderate the event on October 29, 2019. Here he previews the panel on medical marijuana in the workplace with panelist Bernadette C. Sargeant of Stinson LLC.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on September 2, 2019.
Changing Currents 2019: Panel Preview – Medical Marijuana in the Workplace
» “Changing Currents in Employment Law” will take place on October 29, 2019. Click here for more details and registration options.
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: Hello everyone. We are here with Bernadette Sargeant of the Stinson law firm. We are talking about one of our panels at this year’s D.C. Bar “Changing Currents in Employment Law” on October 29, 2019.
[Turning to interviewee] Bernadette, your panel is going to be on medical marijuana in the workplace. So let’s talk about medical marijuana — because when we’re dealing with that subject, it’s a really complicated subject because you’ve got differences between federal law, and state law, and local law.
So what’s an employer do?
Bernadette Sargeant: You know Scott, it’s a minefield really.
I think the bottom line [for] employers, even in states where there are comprehensive medical marijuana laws, [is that under] the federal law, marijuana is still a controlled substance. And a lot of employers, they might have positions that have safety requirements — so employers still have a lot of discretion if they want to be able to discipline or terminate an employee who has a positive marijuana test result. Impairment is a separate thing: Impairment involves laws of termination even for a legal substance like alcohol.
But here are the complications. First of all, not every employer wants to terminate his or her employee who tests positive.
Oswald: It may be their best employee.
Sargeant: That’s right. But if you’re a federal contractor you pretty much have to — if you’re doing contracts that require your employees to have any kind of security clearance, if they have to have a drug-free environment, if they have to be able to pass drug tests. We’ve gotten more than one call from clients who are federal contractors who are beside themselves because one of their best employees on a contract now has this marijuana issue.
Medical marijuana obviously is different from recreational marijuana. States that allow medical marijuana usage usually have a lot of certification requirements and prescription requirements. But even if an employee goes through [that] and has all of that certification that they can present, the federal law still stands as a potential roadblock.
Oswald: So let’s say that I’m an employer, or counsel for an employer, and I’m sitting in the audience at “Changing Currents” on October 29. What am I likely to hear in terms of the advice that you would give me in crafting a marijuana policy in my workplace?
Sargeant: Well, I think if you’re in a position where part of your practice is counseling employers, you always know Step One: Listen to all the facts and circumstances of your client’s situation. If your client is doing business in D.C. there is, as I said, a comprehensive medical marijuana statutory system — but there is still the federal prohibition. A lot of our D.C. employers are federal contractors.
Oswald: And if I’m a federal contractor, I’m following federal law.
Sargeant: Right — you have to be able to follow the requirements of your contract with the federal government. So the issue becomes, for medical marijuana, do I have to accommodate if a person requests an accommodation?
I think the short answer right now is: If you’re a federal contractor, you probably don’t have that option. If you’re not a federal contractor — if you’re a private employer or if you have contracts that are not through the federal government — it’s probably more nuanced whether you need to engage with some interchange as to accommodation.
Oswald: So for the employee then — I mean, what’s some good advice from the employee side? You’re going to have a co-panelist on your panel.
Sargeant: Right. My co-panelist is going to be Roshni Shikari of Correia & Puth — they do employee-side, and we are working collaboratively on our presentation.
From the employee side, the advice I would give is, first of all, if you work on a federal contract you need to talk with your medical provider about some alternative treatments, because you’re probably not going to be able to get workplace protection for medical marijuana use.
If that’s not an issue — if you don’t work in a federal contracting situation — [and] if you have been through the certification process for medical marijuana and you have whatever approvals, and a doctor’s prescription and so forth, you should proactively raise it if you work for an employer with a drug testing policy. You should communicate with HR and go through that accommodation process.
Oswald: Just like in any ADA case, I’ve got an obligation to let my employer know?
Sargeant: Right, if you’re going to need an accommodation.
Oswald: Bernadette, thank you.
Sargeant: You’re welcome!
Oswald:[Turning to camera] And we look forward to seeing you on October 29, 2019, from 6:00pm to 9:15pm at the D.C. Bar headquarters — “Changing Currents in Employment Law.”