“Ask Sarah” Column

Dear Sarah,

I recently read that the DEA is considering reclassifying marijuana from a Schedule I to a Schedule III substance. I know Texas’s Compassionate Use Act permits use of low-THC medical marijuana for certain medical conditions. What impact could a future reclassification have on employers in Texas?

Mary Jane

Dear Mary Jane,

Currently, marijuana is classified as a Schedule I drug under the Controlled Substances Act, indicating that it has a high potential for abuse and no accepted medical use. The Drug Enforcement Administration (“DEA’s”) proposed reclassification to Schedule III would place it alongside controlled substances with acknowledged medical benefits and lower potential for abuse, like anabolic steroids and certain codeine products.

From my perspective as an employment lawyer, one of the largest impacts will be navigating employee use of medical marijuana, which is already a topic frequently raised in my office. Although medical marijuana use remains illegal at the federal level, it is used in increasing frequency by employees.

Under the Americans with Disabilities Act (“ADA”), employers are required to provide reasonable accommodations to employees with disabilities. Historically, this does not protect individuals engaging in “the illegal use of drugs,” which generally means anything listed on Schedules I and II. Due to this, federal courts have previously held that the ADA does not protect individuals with disabilities with valid medical marijuana prescriptions who lose their jobs for testing positive for marijuana use. However, a move to Schedule III would take medical marijuana use outside the “illegal use of drugs” exception to the ADA.

Employees with valid medical prescriptions might request accommodations such as exemptions from drug testing policies. Many of my clients are already receiving such accommodation requests, and in some instances, have implemented procedures for evaluating and granting them when appropriate. As with other prescription medication that can cause impairment, the employee may use medical marijuana off duty but should never be impaired at work. Currently, clients who are not ready to make this leap (for any number of reasons) are able to fall back on the position that the ADA does not obligate it (note that Chapter 21 of the Texas Labor Code also obligates reasonable accommodation and may be evaluated differently from the ADA on this issue). Finally, the ADA requires an interactive process, so you should never outright deny an accommodation request without any conversation with the employee.

In addition to ADA accommodation changes, employers may need to revisit their drug testing policies and health insurance plans. With the proposed reclassification of marijuana to a Schedule III substance, it might be treated similarly to other prescription medications in drug testing. One of the unique challenges with marijuana is the difficulty in testing for current impairment, as opposed to recent off-duty use. Additionally, some health insurance plans might begin to cover medical marijuana, affecting employer-sponsored health benefits and requiring employers to update their benefits packages to align with new coverage options. This may impact healthcare costs, both in terms of premiums and the overall health management of employees using marijuana for medical purposes.

Of course, most of this is speculative, at least for now. The DEA issued a proposed rule in late May, and the comment period runs for 60 days. By law, the agency must review and respond to all comments submitted. Once it reviews these comments, DEA will develop a final rule. Because of the significance of this change, we would expect that DEA will receive thousands of comments. Consequently, it will be months before the agency finalizes its rulemaking.

“Ask Sarah” is prepared by Sarah Glaser, 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 Sarah at 512.322.5881 or sglaser@lglawfirm.com.