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Alabama's Medical Marijuana Law Doesn't Apply at Work

Cardholders still may experience repercussions on the job

In January 2022, Alabama will become the 36th state in the country that allows doctors to authorize the use of medical marijuana to their patients. But what does that mean in the workplace? How protected are you? It depends, according to M. Tae Phillips, an employment & labor attorney at Ogletree, Deakins, Nash, Smoak & Stewart, in Birmingham.

“The Alabama medical marijuana law is written in about as employer-friendly of a way as possible,” says Phillips.

The medical marijuana laws in some states, for example, contain employment protections for medical marijuana cardholders—making such cardholders, in essence, a protected class, as with age, race and gender. But that’s not the case in Alabama. “There is not any language within the Alabama medical marijuana law that is even close to protecting employees,” says Phillips. “In fact, there’s quite a bit of language that says the exact opposite.”

“This is somewhat paraphrased,” Phillips continues, “but the Alabama medical marijuana law bill does talk about employment. And it says all of the following. It says that it does not require an employer to modify job or work conditions for medical marijuana cardholders. It does not prohibit employers from establishing and enforcing drug testing or drug-free workplace policy. It does not prohibit employers from requiring medical marijuana cardholders to notify employers of cardholder status. It does not provide for an express illegal cause of action for an individual to file a claim against an employer. It does not prohibit employers from taking adverse employment action against medical marijuana cardholders based either wholly or in part on an individual’s medical marijuana use, and regardless of whether or not they’re impaired. So it’s just very, very employer-centric type of language.”

In other states, too, even if there is no employment protection written into the medical marijuana law, there is the possibility of a disability-based claim, since medical marijuana cards are usually issued to those with underlying medical conditions, such as cancer, chronic pain, or PTSD. And if, in those states, an employer takes an action against such a cardholder, Phillips says, “an individual could assert a disability discrimination or failure to accommodate claim based upon either the underlying medical condition and/or the way in which someone treats their underlying medical condition.”

But, in Alabama, this could prove to be more difficult. “There is no Alabama state disability discrimination law,” Phillips says. “If you are an aggrieved employee who feels as though they have been discriminated against based upon disability in Alabama, you have to bring that claim under the Americans with Disabilities Act and it has to be brought in federal court,” Phillips says. “And I’m not sure how a judge in Alabama would view that. But we do have a conservative judiciary in Alabama. … I would think that the conservative judiciary would probably mean a very conservative view of these types of claims.”

So let’s say, in 2022 or beyond, someone in Alabama has cancer and is undergoing chemotherapy, and their doctor authorizes medical marijuana to help them deal with the nausea; and then they subsequently feel they are discriminated against at their workplace because of this disability. What can they do?

We’ll know more in the coming months.

If you have questions regarding your own workplace, consider reaching out to a reputable attorney in the area of cannabis or employment & labor law.

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