Currently there are 28 states and Washington DC that have legal medical marijuana available. This is more than half of the United States. Even with the majority, employment law and the hospitality industry do not have much guidelines to help pave the way in legal terms. With marijuana, illegal federally and legal at the state level it causes a surplus of confusion. Much of the reason is that there are not very many case laws to reference on both the employment and business side of the industry. There are many questions industry professionals have. Here are a few: Are employers legally able to terminate employees based on positive test results? Do employees with disabilities have different protections? How are employees under federal contract governed? What protections do guests and customers have? Does the ADA cover patients as guest?
Whether an employer may legally fire you for failing an employee drug test because you used medical marijuana, depends on whether or not your state has passed a medical marijuana law with employment discrimination protections. In Delaware, like other states that have similar legislation, the Medical Marijuana Act decriminalizes the use of medical marijuana in an attempt “to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties, and property forfeiture if such patients engage in the medical use of marijuana.” Similar to only a few statutes, the Act includes provisions that provide additional protections to employees. The Act prevents employers from discriminating against an employee “in hiring, termination, or any term or condition of employment, or otherwise penalizing a person” for his “status as a cardholder” or because of a “positive drug test for marijuana components or metabolites.” In majority of the states an employer can impose discipline including termination for a positive marijuana drug test.
While the Americans with Disabilities Act of 1990 protects most employees with serious medical conditions from discrimination, it doesn’t protect their use of medical marijuana. Again, depending on your states statutes very few jurisdictions offer explicit protections for patients. The minority provide protections where employers are prohibited from discriminating against an employee who has tested positive for marijuana and is a registered medical marijuana patient, if he or she doesn’t have a “safety sensitive” job, such as heavy-machinery operator or airline pilot.
One of the few cases involving medical marijuana is James v. City of Costa Mesa, the Ninth Circuit held that the ADA does not protect individuals who claim discrimination against them because of medical marijuana use. The court reasoned that the ADA excludes from coverage disabilities based on illegal drug use. Because marijuana is illegal under federal law, medical marijuana use is not covered under the ADA, even if state has legalized the medical use of marijuana. While it is not unlawful to discriminate against an applicant or employee based on their marijuana use, it is still unlawful to discriminate against an applicant or employee for an underlying disability. Employers should use caution in handling these situations to minimize risk that any adverse employment decisions were based on knowledge of illegal marijuana use and not on knowledge of an underlying disability.
Employees under federal government contract such as employees of federal agencies or employees of private business that have federal licenses and regulations. Casinos for one in Nevada the Gaming Control Board issued an industry notice telling gaming license holders — and even prospective license applicants — to stay far away from medical marijuana. Under federal law, distribution, possession and sale of the drug is a crime. The Control Board based its ruling on federal law. For all the aspiring and current spies, diplomats and F.B.I. agents living in states that have liberalized marijuana laws, the federal government has a stern warning: Federal laws outlaw its use — and rules that make it a firing offense for government workers — have remained rigid. Recruiters for federal agencies are arriving on university campuses with a sobering message that marijuana use will not be tolerated.
In addition to employee use of marijuana businesses are also concerned about the use by guest. The simplest approach for innkeepers is to treat marijuana users like tobacco users. If tobacco is prohibited in guest rooms and in public areas so is marijuana. If a guest’s actions, such as smoking marijuana disrupts other guest, the situation should be treated as any other disturbance. Ask the patron to cease the disruptive behavior and if they do not comply contact the authorities and evict them. With new legislation, each business should familiarize them with the statutes of their state. There are no specifics until more case law present itself. In Colorado, it is up to the discretion of the hotel if it allows marijuana smoke to be consumed in their smoking rooms. Denver city laws prohibit marijuana consumption on hotel balconies if visible from any public place.
There is no consensus on how to handle medical marijuana and the ADA at hotels. This is due to there being no know “case law” on this issue. The issue has not presented itself to hoteliers on a wide scale. To avoid any potential law suits, try to place any marijuana users in smoking rooms when available. If you are a completely “nonsmoking” hotel, the marijuana user should be treated as a cigarette smoker. They must leave the building and be accommodated in s designated area. They should be treated no differently than a tobacco user. If they do smoke in the room and you have the proper notification and signage you may charge them the normal hotel smoking fee. When convenient adding medical marijuana to these signage’s is recommended.
State laws currently provide greater protections to marijuana users. Although, those that have considered such issues in court were generally found in favor of an employer’s right to act against an employee who tests positive for marijuana. Majority of employees who work in a state with the world’s most powerful medical marijuana laws will have to choose between using medical marijuana and work. Also, remember every hotel has the right to ask a guest who is smoking marijuana to stop. Unless they have a legitimate prescription from a licensed physician. If the guest cannot provide the paper work you can prevent them from doing so. If they refuse you may get the authorities involved. Hopefully in the near future there will be more case law on medical marijuana and its roll in employment, business and the ADA throughout the hospitality industry.
2016-11-14-1479151657