Toking the line: Where medical marijuana meets employment law
The use of cannabis for medical purposes is legal in 39 states, four out of five permanently inhabited U.S. territories, and the District of Columbia. Some studies suggest medical cannabis may help treat various conditions, including chronic pain, nausea and vomiting (especially from chemotherapy), anxiety, sleep disorders, and conditions like epilepsy, glaucoma, and multiple sclerosis.
As a result, several states have statutory or constitutional provisions that prevent employers from refusing employment or otherwise discriminating against qualified medical cannabis patients. But cannabis remains a Schedule I controlled substance under the Controlled Substances Act (CSA).
So, what should an employer do when faced with an employee who holds a medical marijuana card and requests accommodation?
Background
While no state requires employers to accommodate an employee’s on-site use of medical marijuana, states are divided on whether employers must reasonably accommodate an employee’s off-duty use. Federal courts have consistently ruled that employers aren’t required to accommodate medical marijuana use under the Americans with Disabilities Act (ADA).
As such, the legal landscape remains unclear. However, a March 7, 2025, decision from the U.S. District Court for the Western District of Pennsylvania provides important guidance for employers operating in jurisdictions that permit medical marijuana use.
Facts
In late January 2023, the Albert M. Higley Company, LLC, extended a job offer to Brian Davis as a project engineer, contingent on successfully passing a preemployment drug screen. The position wasn’t safety-sensitive—more than 80% of the role involved office work, with less than 20% spent in the field.
Davis had been diagnosed with anxiety, depression, and ADHD. He notified the company of his diagnoses and prescribed medications (including medical marijuana) and informed it that he held a medical marijuana identification card.
Davis underwent the preemployment drug screen, and soon after, he offered to sign an agreement stating he wouldn’t use cannabis during scheduled work hours or any other time that might render him under the influence. Nevertheless, the company rescinded the job offer.
Davis sued claiming, among other things, the company failed to make reasonable accommodations for his disabilities—specifically by not engaging in an interactive process regarding accommodations—in violation of the Pennsylvania Human Relations Act (PHRA).
The company asked the court to dismiss the suit.
Court’s decision
The court dismissed the PHRA claim in favor of the company following the Commonwealth Court of Pennsylvania’s ruling in Harrisburg Area Community College v. Pennsylvania Human Relations Commission. There, the commonwealth court held that the PHRA doesn’t protect the use of medical marijuana or require accommodations for its use.
The court reasoned that the PHRA explicitly excludes protections for the “illegal use of . . . a controlled substance,” which includes marijuana, as classified under the CSA. The CSA designates marijuana as a Schedule I controlled substance, with “no currently accepted medical use.” Therefore, the PHRA’s incorporation of CSA provisions meant the PHRA doesn’t protect medical marijuana use or disability claims based on it.
Key points
Not all state laws are equal
Laws vary significantly from state to state. For example, Nevada protects medical marijuana cardholders. While Nevada doesn’t require employers to modify the job or working conditions for an employee who is a medical cannabis patient, it does require employers to attempt to make reasonable accommodations provided such accommodations wouldn’t pose a threat of harm or danger to persons or property, impose undue hardship on the employers, or prohibit the employee from fulfilling job responsibilities.
Multistate employers are well-advised to review the laws in their jurisdictions to make sure their hiring and accommodation practices align with each applicable jurisdiction.
Marijuana isn’t a blanket excuse to deny accommodations
Some employers mistakenly believe that because they aren’t required to accommodate medical marijuana use under the ADA, they don’t need to engage in an interactive process. This reasoning ignores potential obligations under state law. Additionally, accommodation obligations under the ADA become hazier when an employee’s underlying medical condition is being treated with marijuana. While employers may not need to accommodate off-duty marijuana use under the ADA, they may still be required to engage in the interactive process to explore potential reasonable accommodations.
Keep an eye on the CSA
On August 30, 2023, the U.S. Department of Health and Human Services recommended to the U.S. Drug Enforcement Administration (DEA) that marijuana be rescheduled from Schedule I to Schedule III under the CSA based on scientific data. A hearing was set for January 25, 2025, but the DEA canceled the hearing just eight days before it was scheduled. Employers in jurisdictions that link the definition of “illegal drugs” to the CSA should monitor developments in the CSA because changes could affect their obligations under state law.
