What Happens When The Feds Decide To Enforce Marijuana Laws? Preparing For The Trumpocalypse Part II

While four more states legalized marijuana for recreational use and four passed medical marijuana laws, meaning a majority of states now have some form of legal marijuana, it looks like the Trump administration may step up enforcement on the federal level. What does this mean for workers who need marijuana for disabilities? Nothing good.

So far, seven states have passed laws banning discrimination against medical marijuana users in the workplace. However, states that have laws prohibiting discrimination against employees for engaging in legal off duty activities have pretty much universally decided that, since marijuana is still illegal on the federal level, using it even with a prescription still isn't a legal off duty activity. The Americans With Disabilities Act still doesn't cover medical marijuana as a reasonable accommodation due to its illegality on the federal level.

While it has been looking like the feds were not going to enforce marijuana laws and therefore states with legalized marijuana were on their own to decide how to regulate pot use, it now looks like that may be reversed under Trump. This will embolden employers who want to crack down on employees who use medical marijuana.

If you think you can use marijuana in your state and not be fired, even with a prescription, you might want to wait and see how things fall out with the Trump administration.

Another issue with stepped up enforcement will be whether you can be fired for an arrest or a conviction. In most states you can. Plus, in most states employers can refuse to hire you with a record. This means that even in states that have laws against discriminating against medical marijuana users, you may be out of luck if you are arrested by the feds for your prescription.

Then, of course, there's the issue of prison, which obviously is a major concern. All of this is pretty terrible news for folks with cancer, multiple sclerosis, HIV, seizure disorders, Crohn's disease, epilepsy, concussion, Alzheimer's, bipolar disorder and other conditions that are helped by marijuana.

Bottom line is you'll have to wait and see what the Trump administration decides to do about marijuana before you get too comfortable using it for medical or recreational purposes.

Next time, vote better.

Do I Have To Disclose My Medical Condition To A Potential Employer?

An AOL Jobs reader asked me:

Your columns are extremely educational and full of information. Thank you from an appreciative reader. I may have missed this, but when applying for a job, is it necessary to disclose any medical conditions? I am a Diabetic Type 1, and use a pump, which could bulge through my clothes, though I take care to avoid that.

I was hired by a high-end jewelry store one month ago, and after working for 10 days, was told by HR, that I was "not a good fit." No other explanation. Needless to say, I was devastated. I am a University graduate with a B.A. and have always worked diligently. Does this business have a right to dismiss me?

This question addresses an important issue about disabilities. In general, you should not disclose any disabilities when applying for a job. The potential employer is not supposed to ask about any disability until it makes what is called a "conditional" job offer. For details on how the Americans With Disabilities Act works and who is covered, read my article 15 Things You Need To Know About Disability Discrimination.

I answer my reader's question and explain how a conditional job offer works and what questions a potential employer can ask in interviews in my latest AOL Jobs column.

The Last Group Openly Insulted: 7 Ways to Prove Weight Discrimination

I wrote a piece in AOL Jobs called 7 Ways to Prove Weight Discrimination, which I'll excerpt below. But what I really want to talk about are the comments that showed up within a couple hours of the piece going up:

From jmasiulewicz:
"The only category of the ADA that can be voluntarily acquired. A disability by choice. Disgusting."

From rkeeeballs
"If it looks like a fat slob....it is !"

From mckdarren
"Yeah, let's encourage more lawsuits, Donna, instead of encouraging fat people to get control of their lives and health. You're a disgrace."

These jerks prove my point exactly. Overweight people are one of the last groups that Americans feel free to insult openly. Obesity has officially been declared a disease by the medical community. When will we stop treating the overweight like they are less than human?

Anyhow, rant over. Here is the beginning of the article.

In June, the American Medical Association declared that obesity is officially a disease. I've written in the past about weight discrimination and whether it's covered under the Americans With Disabilities Act. The big question is whether, now that disability has been declared a disease, the overweight will find more legal protection under discrimination laws.

Well, the lawsuits are already flying. One law firm reports that a client has been sued for weight discrimination, using the AMA's declaration in support of the claim that weight discrimination is now covered under the Americans With Disabilities Act. I'm sure there are others being filed around the country. 

So, how do you prove illegal weight discrimination? Here are 7 things you'll need to be able to prove if you want to sue for weight discrimination: 

You can read how at AOL Jobs.

Can I Tape My Employer If I Have Poor Memory?

I got this question on an old but popular post, I Secretly Taped My Boss and Now I Want to Sue:

I have been telling my supervisor for months that I have a memory problem. He knew that I was working with a neurologist. I recorded a meeting with him where I anticipated finding out what my new job duties would be. I live in MD and was terminated for making the recording, even through I told them why I did it.

Thisguyneedshelp

Hi Thisguyneedshelp. As I stated in my prior post, Maryland is an all-party consent state, meaning that your employer must consent before you are allowed to record them. In your situation, I think withholding consent might violate the Americans With Disabilities Act (ADA).

If your memory problem is caused by a disability, such as Alzheimer's, Parkinson's, or another medical or mental condition that substantially limits a daily life activity, then you are allowed to request a reasonable accommodation for your condition. If you told your employer you need to tape conversations so you can remember them, that's a request for a reasonable accommodation under the ADA.

If you've been taping conversations with their knowledge, then all of a sudden they fired you for doing so, then firing you for doing so may violate the ADA.

If, however, you secretly taped the conversation and they found out about it, you may be out of luck.

Here's what I suggest for people who want to tape conversations in an all-party consent state. Put the tape recorder on the desk in front of the person with whom you are speaking. Turn it on and say, "I'd like to tape this conversation. Is that okay?" If they say yes, then tape away. If they say no, turn it off. You could add, for future employers, "I'd like to tape this conversation to accommodate my memory issues. Is that okay?"

If you were fired for taping without the employer's consent, then Maryland, like every state except Montana, is an at-will state. That means you can be fired for any reason or no reason at all (with exceptions). You can't be fired because of a disability, race, age, sex, religion, national origin, or other protected status. You can't be fired because you blew the whistle on illegal activity of the company, made a worker's comp claim, or took FMLA leave. Otherwise, they can fire you for a bad reason or no reason.

I'd suggest talking to an employment lawyer in your state about your rights.

Legal Marijuana Use Can Still Get You Fired

Now that two states have legalized marijuana altogether and another has decided to allow it for medical purposes, you may be thinking you can finally have the occasional toke if you're in one of the lucky states. But don't bogart that joint just yet.

Marijuana use is still illegal under federal law. That includes medical marijuana use. Even if you have a disability that is protected under the Americans With Disabilities Act, the feds say too bad.

How does this affect your job?

If you use marijuana and your company finds out about it (or you're near someone who smokes and test positive due to secondhand smoke), you can still be fired.

Drug testing: In a recent case, the Washington Supreme Court ruled that their state law doesn't keep employers from drug testing employees and firing them for positive results. Same with a recent case in Michigan against Wal-Mart.

State laws against discrimination: Some states have made discrimination against medical marijuana users illegal. Connecticut, Arizona, Rhode Island, Maine, Colorado and New York all have prohibitions against workplace discrimination regarding medical marijuana users. Other states prohibit licensing and disciplinary boards from penalizing medical marijuana users. Even those states that prohibit discrimination based on marijuana use have exceptions to those legal protections, so be careful to make sure you are legally protected before you light up.

State off-duty activities laws: Some states prohibit termination/discrimination based upon an employee's lawful activities off-duty. These states include California and Colorado, so employers will need to be careful not to violate other related laws as marijuana becomes legal. Other states prohibit discrimination against employees for use of "lawful consumable products" such as tobacco, so the same laws will likely protect marijuana users as it becomes legal in those states.

Americans With Disabilities Act: Although many politicians pound tables yelling about "states' rights," the federal laws and courts still don't recognize the state laws making marijuana use legal. So far, courts have not recognized medical marijuana use as a reasonable accommodation under the Americans With Disabilities Act. More importantly, even though you might not end up in state prison, the feds can still prosecute you for marijuana, so be careful.

While the clear trend is to legalize marijuana, opening up a huge new tax base, eliminating the huge waste of resources spent on prosecuting marijuana cases, and giving relief to severely ill patients, the fact is that you may still be able to be fired for using marijuana even for medical purposes while not at work. The times are changing, but it will take a while for the employment laws to catch up with this important legal trend.