At times I think I have heard every possible excuse from employees trying to avoid disciplinary action, but one situation last week posed claims I have not encountered. An employer smelled marijuana and discovered that an administrative employee was using a THC vape pen during work. When the employer reminded the employee that such use was prohibited under company policy, the employee responded that his doctor had recommended that he occasionally use the vape pen to help manage anxiety, and that he could not function at work without this assistance.

Over the past decade, there have been a growing number of cases discussing employers' obligation to accommodate employee medical marijuana use. Other cases involve disciplinary action against workers for positive THC tests in states with legal recreational marijuana. However, to the best of my knowledge, all of these cases involve off-duty marijuana use, and have not included requests by employees that they be allowed to be under the influence of THC at work.

Under the Americans with Disabilities Act, THC remains an illegal drug, excluded from the statute’s accommodation requirements. In the absence of a state law requiring accommodation, employees are unlikely to prevail on federal ADA claims seeking accommodation for such use. State lawful products statutes only apply to employee off-duty use of legal products (including for now, hemp-derived THC products) and would not support an employee claim challenging disciplinary action.

Even in states that protect off-duty marijuana use, it’s difficult to envision a scenario where courts would extend this to getting high at work. Employers should be able to successfully argue that THC use results in impairment, meaning that the employee cannot perform the essential functions of even non-safety sensitive jobs, or that THC use creates an undue hardship for the employer.

I am also dubious that many doctors would prescribe or otherwise advise a patient to use THC while at work, especially given the difficulty in measuring a precise dosage or determining the effects of such use on work functioning. If accepted, the same argument could be made by an employee who claims that their doctor recommended that they occasionally drink small amounts of alcohol at work to manage stress. As a result, employers can draw the line between accommodating manageable side effects of prescription medication use, and tolerating employee use of recreational intoxicants at work.

I will give the employee in my scenario kudos for a creative argument, but employers still have the right to maintain policies that prohibit the use or possession of intoxicants at work, and also bar employees from being under the influence of such substances during working time.

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