To follow up on our August 2, 2017 Nonprofit Alert, "Rock, Meet Hard Place: Accommodating Medical Marijuana," the following briefly summarizes whether a nonprofit organization in the District of Columbia, Maryland, and Virginia must accommodate an employee's use of medical marijuana. As is typical of the region, the legal landscape shifts as you cross the Potomac River, and again as you cross Western Avenue.
District of Columbia: The District of Columbia (DC) legalized the recreational use of marijuana, with restrictions. In DC, a person who is at least 21 years old may possess up to two ounces of marijuana and use it on private property. The statute expressly provides that it does not require employers "to permit or accommodate the use … of [recreational] marijuana in the workplace" and that employers may continue to "establish and enforce policies restricting the use of [recreational] marijuana." But medical marijuana raises different questions. DC legalized medical marijuana without any express provision protecting employees who use medical marijuana from "the denial of a right or privilege," or any other such similar language. In the private sector, there are not yet any reported judicial decisions about whether an employer, including a nonprofit, must permit or otherwise accommodate an employee's use of medical marijuana. In the public sector, the DC Department of Human Resources has issued guidance stating that a DC employee who has been "authorized by a licensed physician to use marijuana for medicinal purposes is permitted to do so in accordance with applicable laws, rules and regulations of their states of residence, provided such usage does not impair or otherwise impede his or her ability to safely carry out assigned duties and responsibilities." It remains to be seen whether courts will apply this approach to the private sector.
Maryland: Maryland has not legalized use of recreational marijuana, although a handful of bills to do that have been introduced in the General Assembly. Maryland did legalize the use of medical marijuana, with the express protection that qualifying patients, providers, caregivers, and growers may not be “denied any right or privilege for the medical use of cannabis." Md. Code, Health-Gen §13-3313. How Maryland courts will interpret that clause remains to be seen. In the meantime, nonprofit employers should proceed with caution and consider engaging in an interactive process to attempt to accommodate an employee's use of medical marijuana.
Virginia: Virginia has not legalized marijuana use in any form, either recreationally or medicinally. While some Virginia lawmakers have proposed bills in the General Assembly to legalize the medicinal use of marijuana, to date, none has garnered enough support to become law.
The proximity of these three jurisdictions to each other raises interesting potential questions. For example: Imagine that a Maryland resident who has been prescribed medical marijuana crosses into Virginia every day to work, is terminated for failing a drug test, and brings suit. Can that Virginia nonprofit terminate the employment of the Maryland resident for marijuana use that occurred and is protected in Maryland?
While it is not yet clear where DC metro-area nonprofit organizations will find a comfortable space between the rock (where accommodating medical marijuana is required) and the hard place (where marijuana use for any purpose is illegal), nonprofit employers should revisit their policies and consult with legal counsel as we continue to monitor the development of the law in this area.