“Ask Sheila” Column

Dear Sheila,

We understand that in September 2021, the Texas Legislature expanded the ways doctors in Texas can legally prescribe medical marijuana. We have a no-tolerance drug policy. What do we do when one of our safety-sensitive employees or applicants test positive for marijuana, and then say that it is legally prescribed?

Drug-Free Workplace

Dear Drug-Free,

It is true that HB 1535 amended the Texas Occupations Code to expand the conditions for which physicians may prescribe low-THC cannabis. Previously, medically-prescribed marijuana was allowed only for a very narrow range of conditions, but HB 1535 now authorizes prescriptions for all forms of cancer,
post-traumatic stress disorder, and
certain medical research.

Although the bill does not provide employment protection to applicants or employees who qualify for medical use, it is possible that disciplining or terminating an employee for using properly-prescribed marijuana would lead to a claim under disability discrimination and accommodation statutes, such as the Americans with Disabilities Act or Chapter 21 of the Texas Labor Code. The question will be whether the employer can reasonably accommodate the medical use of marijuana; at no time will the employer be required to allow the employee to be intoxicated at work. As with other prescription drugs such as opioids, it is not a reasonable accommodation to permit an employee to work in a manner that impairs the ability to perform tasks safely or efficiently.

Employees should be reminded to inform drug testing personnel prior to screening of any prescription drugs being taken that could result in a positive drug test. If the employee tests positive for marijuana, he or she will need to provide proof of a valid prescription, and the employer should engage in a discussion (the “interactive process”) with the employee about the timing of doses and the risks of workplace intoxication, and whether anything can be done to mitigate such risks.

Note that prescription medical marijuana will likely not be treated the same legally as over-the-counter (OTC) products that contain THC, so we believe you can still ban such OTC use for your workforce. Consider warning employees in your drug policy that it is their responsibility to know the contents of what they are taking, prescribed or non-prescribed, and that unregulated substances are used at their own risk. Employees should know that they may be subject to discipline for violations of your drug policy, whether intake of an illicit substance was intentional or otherwise, and that OTC cannabis products that cause a positive drug test or cause the employee to be under the influence at work are prohibited.

“Ask Sheila” is prepared by Sheila Gladstone, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.

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