Toking the Line: Where Medical Marijuana Meets Employment Law

By Benjamin A. Nucci

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 that medical cannabis may help treat various conditions, including chronic pain, nausea and vomiting (especially from chemotherapy), anxiety, sleep disorders, and conditions such as 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.

Despite this, cannabis remains a Schedule I controlled substance under the Controlled Substances Act (CSA). Federal courts have consistently ruled that employers are not required to accommodate medical marijuana use under the Americans with Disabilities Act (ADA). See James v. City of Costa Mesa, 700 F.3d 394, 397-98 (9th Cir. 2012).

So, what should an employer do when faced with an employee who holds a medical marijuana card and requests accommodation?

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 of medical marijuana. As such, the legal landscape remains unclear. However, a March 7, 2025, decision from the United States District Court for the Western District of Pennsylvania provides important guidance for employers operating in jurisdictions that permit medical marijuana use.

Factual Background

In late January 2023, the Defendant offered the Plaintiff employment as a “Project Engineer,” contingent on successfully passing a pre-employment drug screen. The position was not safety-sensitive — more than 80 percent of the role involved office work, with less than 20 percent spent in the field.

The Plaintiff was diagnosed with anxiety, depression, and ADHD. He notified the Defendant of his diagnoses, prescribed medications (including medical marijuana), and informed the Defendant that he held a medical marijuana identification card. The Plaintiff underwent the pre-employment drug screen, and soon after, he offered to sign an agreement stating that he would not use cannabis during scheduled work hours or any other time that might render him under the influence. Nevertheless, the Defendant rescinded the job offer.

The Plaintiff sued, claiming, among other things, that the Defendant failed to make reasonable accommodations for his disabilities (anxiety, depression, and ADHD), specifically by not engaging in an interactive process regarding accommodations, in violation of the Pennsylvania Human Relations Act (PHRA).

The Defendant filed a motion to dismiss.

The Court’s Decision

The Court dismissed the PHRA claim with prejudice, following the Commonwealth Court of Pennsylvania’s ruling in Harrisburg Area Community College v. Pennsylvania Human Relations Commission, 245 A.3d 283, 285 (Pa. Commw. Ct. 2020) (HACC). There, the Commonwealth Court held that the PHRA does not 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 that the PHRA does not protect medical marijuana use or disability claims based on it.

Key Points

1. Not all state laws are equal.

Laws vary significantly from state to state. For example, Nevada, like Pennsylvania, protects medical marijuana cardholders. While Nevada doesn’t require an employer to modify the job or working conditions of an employee who is a medical cannabis patient, it does require an employer to attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of cannabis provided such an accommodation would not pose a threat of harm or danger to persons or property, impose undue hardship on the employer or prohibit the employee from fulfilling any and all of their job responsibilities. Multi-state employers are well advised to review the laws in their jurisdictions to make sure their hiring and accommodation practices align with each applicable jurisdiction.

2. Marijuana is not a blanket excuse to deny accommodations.

Some employers mistakenly believe that since they are not required to accommodate medical marijuana use under the ADA, they do not need to engage in an interactive process with a medical marijuana cardholder. This reasoning ignores potential obligations under state law. Additionally, accommodation obligations under the ADA becomes hazier when the 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.

3. 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, as changes could impact their obligations under state law.