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Employment Protections Under Medical Marijuana Laws

Inside Counsel
February 20, 2012, Kathleen Furey McDonough

The age of medical marijuana has arrived. Sixteen states, plus the District of Columbia, have enacted legislation that affords protections to qualifying individuals with debilitating medical conditions by allowing them to lawfully engage in the medical use of marijuana. Other states are considering enacting similar legislation in the near future.

Delaware recently joined this growing trend among states when it enacted the Medical Marijuana Act.  Unlike the majority of medical marijuana statutes, the Delaware Act includes provisions that afford additional protections to employees. Specifically, the Delaware Act prevents employers from discriminating against an employee “in hiring, termination, or any term or condition of employment, or otherwise penaliz[ing] a person” for his “status as a cardholder” or because of a “positive drug test for marijuana components or metabolites.”

While granting these protections, the Delaware Act qualifies the protections in two ways. First, the statute exempts employers from compliance if it would “cause an employer to lose a monetary or licensing related benefit under federal law or federal regulations.” Second, despite the Delaware Act’s protections, an employee can be disciplined if he “used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”

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