How Texas Medical Marijuana Laws Affect Employers and Employees | The Law Offices of Gregory D. Jordan

How Texas Medical Marijuana Laws Affect Employers and Employees

Over the past decade, states across the country started to legalize both medical and recreational use of marijuana. While Texas has yet to completely legalize marijuana for non-medical use, the Compassionate Use Act allows qualifying patients to purchase marijuana for medical use. However, this has led to some confusion about how Texas’ medical marijuana laws should be enforced in the workplace. Can employees use marijuana while off-duty? Can employers prevent employees from using marijuana even if they have a qualifying health condition? Do Texas employers have the right to screen for marijuana use among employees? These are a few of the questions that both employers and employees have given the recent expansion of the Compassionate Use Act.

Who Qualifies for Medical Marijuana in Texas?

The Texas Compassionate Use Act allows patients with certain qualifying health conditions to obtain a prescription for marijuana. However, qualifying patients can currently only purchase low-THC cannabis products containing .5 percent THC or less. The qualifying conditions under the Compassionate Use Act include:

  • Amyotrophic lateral sclerosis
  • Autism
  • Epilepsy
  • Incurable neurodegenerative disease
  • Multiple sclerosis
  • Seizure disorders
  • Spasticity
  • Terminal cancer

However, as of September 1, 2021, the Compassionate Use Act will expand to cover all forms of cancer and patients with post-traumatic stress disorder (PTSD). Additionally, the maximum amount of THC available in medicinal cannabis products will increase from 0.5 percent to 1 percent. While this is still a very low THC content (most strands of marijuana have a THC content between 10 and 20 percent), it stands to reason that increasing the amount of allowable THC in cannabis products will increase the number of positive drug tests among Texas employees.

Do Medical Marijuana Patients Have Any Employment Protections?

While Texas law may allow employees to consume marijuana if they have a qualifying medical condition, marijuana is still illegal under federal law. Thus, employers can rely on the federal prohibition against marijuana use to justify a marijuana-free workplace.

The Compassionate Use Act does not contain any protections for qualifying patients who treat their conditions with marijuana. Thus, absent a new state law addressing an employer’s ability to screen for marijuana, refuse to hire medical marijuana patients, or fire employees who test positive for marijuana, employers may be free to do as they see fit.

However, employers should use care when taking any adverse employment action against an employee who is certified to use medical marijuana under the Compassionate Use Act, as this area of the law is rapidly changing. For example, an employee eligible for medical marijuana may argue that an employer’s failure to engage in the interactive process when they request a reasonable accommodation constitutes disability discrimination. While it is unclear that allowing medical marijuana use would be considered a “reasonable accommodation” under the current state of the law, the employee may premise their claim on the underlying disability rather than the marijuana use.

While Texas courts have not issued many binding opinions on the topic, this will likely change in the near future. It also seems that each election cycle, there are several marijuana-focused bills up for review. The most important piece of advice for employers is to consistently review the current state of the law and revise their marijuana policies accordingly.

What About an Employee’s Off-Duty Recreational Use of Marijuana in a State Where It Is Legal?

On a related topic of interest to many employers and employees, if an employee takes a trip to Colorado, Massachusetts, California, or any other state where recreational marijuana is legal, they may be putting their job on the line if they choose to consume the drug. Under Texas law, employers are free to prohibit illegal drug use, whether it is on-the-job or off-duty.

However, employers must be careful to follow a neutral drug testing policy when testing employees for marijuana. While there are few restrictions on an employer’s ability to drug test employees, an employer cannot selectively test employees based on the employer’s belief that an employee is more likely to use marijuana. Instead, an employer must develop a reasonable drug-testing program that is applied in an even-handed manner.

Contact an Experienced Austin Employment Lawyer for Immediate Assistance

Medical marijuana laws are quickly changing in Texas and across the country. If you have questions about an employer’s rights and obligations pertaining to medical marijuana use in the workplace, reach out to Austin employment lawyer Gregory D. Jordan. Attorney Jordan has decades of experience handling some of the most challenging employment cases, including discrimination, wage and hour violations, and more. He represents both employers and employers, providing him with a comprehensive knowledge of the law from both perspectives, which he uses to his clients’ advantage. To learn more and to schedule a consultation today, call 512-419-0684. You can also reach Attorney Jordan through his online form.

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