Where there’s smoke, is there FMLA leave?

Currently, 37 states have legalized marijuana for medical use. May employees who use the drug legally under these state laws also have a right to take leave under the federal Family and Medical Leave Act (FMLA) for a medical condition being treated by marijuana?

Serious health condition

In the context of medical marijuana, under the FMLA, eligible employees may take leave if they have a serious health condition or to care for a family member with a serious health condition. Employees who legally use marijuana would not lose their FMLA leave rights just because they (or a family member) use the drug.

To qualify for FMLA leave protections, an employee or family member must be incapacitated to the point they are unable to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

This is where things get complicated.

Substance abuse

Substance abuse can be an FMLA serious health condition. FMLA leave may be taken, however, only for treatment for substance abuse, not for being inebriated at work, tardy due to substance abuse, etc. In those cases, employees can be held to company policies.

On the other hand, an absence because of the employee's general use of the substance does NOT qualify for FMLA leave. Marijuana remains illegal under federal law.

Marijuana could, however, be part of a medical treatment plan. If it is part of the treatment, and employees are unable to work because they need to recover from its effects, that time off could be protected by the FMLA.

Regardless, employers need not allow impaired employees to be at work.

Drug-free workplace policies

Generally, employers may enforce their drug-free workplace policies against marijuana use because marijuana use is still illegal under federal law — but check applicable state laws for employee protections.

If an employer takes a negative employment action, such as termination, because an employee took FMLA leave and used medical marijuana, the employee might argue that the action was in retaliation for taking FMLA leave or interfered with their FMLA leave rights. If a judge or jury believed this was an employer’s true motivation, those actions (interference and retaliation) are illegal under the FMLA, and the employee could be awarded damages, attorney fees, and reinstatement.

Key to Remember: The intersection of medical marijuana and FMLA leave can be tricky and needs to be handled carefully taking in all the facts.