On May 6, 2021, the Alabama legislature approved a medical marijuana legalization bill. Senate Bill (SB) 46, more commonly known as the Darren Wesley ‘Ato’ Hall Compassion Act, will now go to Governor Kay Ivey for final approval. Governor Ivey has not indicated that she will veto the bill, although a spokesperson for Governor Ivey has stated that she “look[s] forward to thoroughly reviewing it.”
If Governor Ivey signs the bill, it will go into effect immediately.
The bill lists 16 medical conditions and categories of conditions for which an individual would be eligible for a medical marijuana card in Alabama, such as Crohn’s disease, depression, epilepsy, panic disorder, post-traumatic stress disorder, or “any condition” causing chronic pain where other treatment, including with opioids, have been ineffective.
Notably, the bill defines “medical cannabis” to exclude products that can be smoked and vaped, and marijuana-infused food products and to include other products such as oral tablets, gels, oils, creams, patches, or lozenges.
Importantly, unlike many other state medical marijuana legalization laws, the bill does not contain any express employment protections for medical marijuana cardholders. Instead, the bill’s language is employer-friendly in nature. With respect to employment, the bill specifically states that the bill does not:
Require an employer to permit, accommodate, or allow the use of medical marijuana;
Require an employer to modify job or work conditions for applicants or employees who use medical marijuana;
Prohibit employers from taking adverse employment action against medical marijuana cardholders, based either wholly or in part on the individual’s medical marijuana use, and irrespective of impairment;
Prohibit employers from establishing and enforcing drug testing, drug-free workplace, or similar policies;
Prohibit employers from requiring medical marijuana cardholders to notify employers of medical marijuana cardholder status;
Interfere with federal regulations or restrictions, such as U.S. Department of Transportation regulations; and
Provide for an express, legal cause of action for an individual to file a legal claim against an employer.
In the absence of express employment protection language within the bill, employers likely may take adverse employment action against medical marijuana cardholders with minimal risk of violating the bill. However, Alabama employers may want to remain mindful that even if taking action against cardholders is lawful, cardholders may pursue disability discrimination and accommodation claims related to their marijuana use. Individuals must have a qualifying medical condition in order to be authorized to receive a medical marijuana card, and any of the 16 medical conditions that would make an individual eligible for a card likely would be considered a disability under disability discrimination laws such as the Americans with Disabilities Act (ADA). Courts and administrative agencies around the country have regularly determined that medical marijuana cardholders may assert disability claims under state disability discrimination laws and, in some instances, the ADA. Therefore, Alabama employers should closely monitor this issue going forward.
With marijuana legalization being a new development in Alabama, court guidance and interpretation of the bill and related disability discrimination and accommodation claims will be critical.
© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 130