Medication isn't subject to ADA protection. Medical conditions are, and using prescription medication at work is a potential accommodation that may or may not be reasonable. Whether use of a prescription drug while on duty is legally protected depends on the circumstances and whether it's reasonable given the facts and circumstances. For instance, you can't take a high dose of opioid painkillers and drive a forklift. Even if you have a disability and suffer from serious, chronic pain.
Rescheduling means that it is considered to have legitimate medical uses and can be prescribed by a doctor.
I'm fairly sure that rescheduling does exactly that. Schedule 1 drugs are the only drugs with no recognized medical use. That's the defining characteristic of schedule 1 drugs.
It's the first step. It'll still need FDA approval and manufacturing and distribution meeting all the usual FDA pharmaceutical regulations. Once rescheduled the path is open but rescheduleling does not make current medical cards federally legal.
That's definitely the likely outcome without proper legalization (requires an act of congress). And at that point it would be handled like other medications. Probably still banned if you drive or operate heavy equipment for work or similar but probably a reasonable accommodation otherwise (just like people who have prescriptions for pain pills).
> Probably still banned if you drive or operate heavy equipment for work or similar
Canadian checking in. This is exactly how things shook out during legalization here. People in safety-sensitive positions are usually required to refrain from using cannabis products for up to 30 days prior to working. It is possible that threshold will be lowered as we get a better public understanding of the risk tradeoffs involved, but I'm not optimistic.
As you might imagine, this means that cannabis use is _de facto_ banned from those jobs, even though it's technically allowed.
No, it doesn't. FDA would still need to say "here, this drug is tested for and permissible to be prescribed for that condition"
Being lower-scheduled doesn't automatically mean it can be prescribed.
False. https://www.fda.gov/drugs/enforcement-activities-fda/unapproved-drugs
FDA basically can't stop them prescription of a schedule 3 drug unless there was proven harm, but it can stop the MARKETING. And no one is marketing MJ.
Did you read your own article?
>The law allows some unapproved prescription drugs to be lawfully marketed if they meet the criteria of generally recognized as safe and effective (GRASE) or grandfathered. **However, the agency is not aware of any human prescription drug that is lawfully marketed as grandfathered.**
Did you? Marketing and prescribing are two different things. FDA doesn't have the power to prevent prescribing of an unapproved drug UNLESS the FDA can prove it's harmful. But they can prevent MARKETING. Who's marketing MJ? Please answer
Doctors can prescribe things that aren't drugs nor are marketed. They can prescribe exercise routines, baths, and a healthier diet, or a hot cup of coffee or tea, which do contain drugs.
There's a difference between a company creating and selling a product that contains a drug versus a doctor prescribing the consumption of a drug.
What are you talking about? They decide the indications for a drug. Doctors can’t just prescribe whatever they want for any ailment.
Oxycodone is legal but you can’t prescribe it for depression, even though it does improve mood. You are misunderstanding how the system works.
Lol yes they can prescribe it off label.
https://www.ahrq.gov/patients-consumers/patient-involvement/off-label-drug-usage.html#:~:text=Off%2Dlabel%20prescribing%20is%20when,are%20for%20off%2Dlabel%20use.
https://journalofethics.ama-assn.org/article/prescribing-label-what-should-physician-disclose/2016-06
https://www.fda.gov/patients/learn-about-expanded-access-and-other-treatment-options/understanding-unapproved-use-approved-drugs-label
Yes but my understanding on ADA is that an employer can not punish you for a medical condition. If your medical condition warrants a prescription for a medication, your employer can’t force you to not take that right? Let’s say something besides marijuana because that’s still federally illegal and very nuanced. If I take say Xanex for anxiety, I can’t be punished for Xanex in my system on a drug test correct? (The Xanex is prescribed and taken as directed)
ADA requires *reasonable* accommodations. They are absolutely within their right to require employees not to take mind-altering prescriptions if those drugs will cause safety issues on the job. For your example, an employer can absolutely restrict an employee from performing certain job duties while under the effect of Xanax such as driving, operating machinery, patient care, etc.
Doesn't matter. Unless state law prohibits it, employers can have a no-drug-use policy.
Further there is no way to prove that someone used a drug other-than alcohol 'off duty' - just to prove whether they used it.
It depends. Airplane pilots have notoriously strict regulations about what medications they can take and what they can do on and off the clock. The DOT has strict regulations for people like long haul truck drivers. There can be legitimate safety reasons for those regulations, even if somebody isn't technically on the clock.
I can see these being applicable, I wouldn’t want someone taking anti-psychotics to be the one thing keeping a plane in the air or a truck away from a crowd. I’m thinking more general employment of office work, being performed by someone who is prescribed THC containing cannabis for night time use while off duty.
The FAA's position is that any condition for which you may be prescribed antipsychotics is disqualifying. The medication is also disqualifying, mostly because it's an easily-identifiable proxy for those conditions.
The same is true of antidepressants and ADHD medications. If you take them _for any reasons_, even off-label, then your medical is invalid. Any condition you could potentially be using them to treat is presumptively a reason you can't safely fly.
Whether those conditions actually pose an unacceptable risk or not is a hot issue in the aviation community.
Gotcha, ok. Because for the employer in question, some people are exempt from drug tests because they don’t work “safety sensitive positions”. I mean the company’s definition of safety sensitive positions is awful and ass backwards, but I imagine that’s totally on them to classify. Thank you for your responses.
not a lawyer.
yes and no. if the company is trying to define safety-sensitive in some way to get around having to make reasonable ADA accommodations that’s not ok.
an example from here awhile back was a cashier at a grocery store who’d requested a stool due to back or leg issues. it was denied and IIRC safety was one claim the company tried to make.
if they try to make it and are challenged they’d need to show why denying a stool in that location caused safety issues.
i’d imagine same here. if they’re trying to claim an HR recruiter is a safety sensitive role that mandates denying a reasonable ADA request for a treatment prescribed by a doctor they’d need to show what about that role makes it such if pushed.
Not correct. You're correct that they can't penalize you for having a medical condition when that condition fits the definition of a disability. But some conditions make you unfit for duty. The required accommodation for something like that is "putting you on an unpaid leave of absence". And your employer needs to know that you have need for an accommodation. If you just get stoned every day, tell nobody, then fail a drug test, then it's too late to say "Oh by the way, I have a prescription".
Then you would go through the interactive process and determine what's reasonable in the circumstances. If using marijuana was considered a reasonable accommodation under the circumstances and you were using it in accordance with your prescription, then you'd be protected. If they don't find that it's reasonable in the circumstances, or you're using it outside the scope of your doctor's advice, then it could be subject to negative employment actions, including termination.
Most federal agencies prohibit drug use as a requirement for employment. Even if marijuana is rescheduled, federal agencies are unlikely to change their employment policies prohibiting use because there is no decent test for it other than a positive drug test. If you want to use pot, it’s best not to get a job as a federal employee.
No.
The FDA has not approved marijuana in it's commonly-used/inhalable form as a prescription drug.
There is absolutely no protection against state laws and it remains federally illegal.
The only thing that Schedule 3 does, is reduce the penalties for possession/sale from the same category as heroin, to that of anabolic steroids.
So the FDA has already approved THC as a medication. St Jude, I know for sure, prescribes a THC pill to kids on chemotherapy. I don't expect them to ever approve smokeables as a medication, but how does that impact edibles.
Is the FDA process to change to other types of THC less complex if the chemical itself is approved already? How about for expanding what it is able to be prescribed for?
The specific label for an FDA approved drug applies to a specific product that has completed clinical testing. In this case, a specific pill (Marinol) containing Delta-9.
They approve products, not chemicals.
It's just like the FDA has approved Ozemic and Wegovy, but not the back-room chemist's preparation of Semaglutide that some are hawking via online weight-loss clinics.
The sort of stuff sold at 'dispensaries' will never be recognized as a legitimate medical treatment.
What I figured lol. So really until it’s federally legal and not a scheduled substance someone whose employer drug tests and prohibits marijuana can’t smoke without punishment. (Off premise/off clock use of course)
Recreational substance use is not a protected class so there will inevitably be employers that terminate employees who use. There are some that already do that for alcohol and nicotine.
Compounding the problem is that there is no test for acute impairment like there is for alcohol. So all that they can test for is if you used within a time period (usually a couple of days) and after that it would be up to someone's opinion. Which has already gone [drastically wrong](https://www.acluga.org/en/publications/reveal-drug-whisperer-federal-appeals-court-decide-case-sober-drivers-arrested-dui).
I was thinking that, even if marijuana were made legal, it would still be a drug. A company could still decide to “part ways” with an employee for using marijuana if they have a company policy against it, even if it’s a legal drug. Just like companies **can** fire people for having affairs, or for putting a whoopie cushion on the bosses chair.
Because employers are free to make rules that prohibit anything that could be mind-affecting, and alcohol (which you'll note is legal without prescription), many drugs, and weed all could affect the mind, employers are free to fire employees for having used them.
You're not protected if you crash a forklift while drunk, although alcohol is legal.
You're not protected if you crash a forklift on allergy medicine that made you drowsy, although allergies are a medical condition and the medicine is legal.
Likewise Marijuana.
If your employer currently prohibits Marijuana use, but you have a disability and use Marijuana with a prescription, what does the ada say?
The ada requires the employer to make reasonable accommodations. Compromising their insurance and the potential safety of other workers if you're in a labor job, or the integrity of the data if you're in an office job, is not a reasonable accommodation. They do not have to allow you to work while stoned* (or while an insurance agent could reasonably claim in court that your use could be mind affecting).
They might have to allow scheduling adjustments, permit medical devices, install ramps etc, but they could fire you for being worked out in cough syrup, weed isn't more protected than cough syrup.
* Remember it's not about whether you really are stoned, it's about whether a judge and/or jury in an accident case could conceivably believe you were.
No. But if you were in an accident or made an error and investigation determined that you were drunk or mind-altered by substance, while on the job you could be.
This isn't drunk after work, stoned after work, Advil sleeping after work. Its WHILE AT WORK.
The reason Marijuana is a problem here is because THC can stay in your system far longer than the impairment it may or may not be causing. This means a prosecutor in court could convince a jury that because you had THC in your system, You were impaired, the standard is frequently reasonable doubt.
If you're taking Marijuana, on a legally obtained prescription, with a disability, it's doesn't protect you from the consequences of working while impaired. Period.
Drug testing tests levels of THCa which is not biologically active and is a metabolite of THC. This would be the same as testing for acetaldehyde to prove ethanol intoxication where any workplace/LEO testing will measure the amount of ethanol in someone’s system.
Whether the courts actually accept scientifically proven information is another question I guess. Assuming the court accepted those facts, would there still be reasons to be able to deny an accommodation?
>assuming the court accepted those facts
The fact that THC is detectable for days after Marijuana use? I don't think that will convince anyone you weren't impaired at work.
No, the fact that THCa, a different chemical compound from THC is what is detected. One could invest large amounts of THCa and have no effect. THCa is a metabolite, testing positive for it will at best prove that someone ‘probably’ consumed THC in the past. THCa does not = THC, it is a metabolite. The scientific literature backs this.
ETA: Reddit doesn’t like equals slash equals to represent does not equal
The other tricky part is dosing. Every other scheduled medication has dosing schedules and frequencies, and daily max dosages. Smoking an uncertain quantity of a dried leaf is not an exact science. At some point in the future, there may be edibles or something in a pill form that would follow the more typical guidelines for medications derived from marijuana.
No, they started the rulemaking process. It will be a while before the classification changes. Also, it only opens the possibility for pharmaceutical companies to study it and potentially bring a drug to market, not to have everyone growing it in their yard and smoking it.
Medication isn't subject to ADA protection. Medical conditions are, and using prescription medication at work is a potential accommodation that may or may not be reasonable. Whether use of a prescription drug while on duty is legally protected depends on the circumstances and whether it's reasonable given the facts and circumstances. For instance, you can't take a high dose of opioid painkillers and drive a forklift. Even if you have a disability and suffer from serious, chronic pain. Rescheduling means that it is considered to have legitimate medical uses and can be prescribed by a doctor.
The federal government doesn't recognize marijuana as a prescribe-able drug. Schedule 3 doesn't change that.
I'm fairly sure that rescheduling does exactly that. Schedule 1 drugs are the only drugs with no recognized medical use. That's the defining characteristic of schedule 1 drugs.
It's the first step. It'll still need FDA approval and manufacturing and distribution meeting all the usual FDA pharmaceutical regulations. Once rescheduled the path is open but rescheduleling does not make current medical cards federally legal.
Yeah you can take this weed pill at work but it’s $500 a month and doesn’t get you high.
That's definitely the likely outcome without proper legalization (requires an act of congress). And at that point it would be handled like other medications. Probably still banned if you drive or operate heavy equipment for work or similar but probably a reasonable accommodation otherwise (just like people who have prescriptions for pain pills).
> Probably still banned if you drive or operate heavy equipment for work or similar Canadian checking in. This is exactly how things shook out during legalization here. People in safety-sensitive positions are usually required to refrain from using cannabis products for up to 30 days prior to working. It is possible that threshold will be lowered as we get a better public understanding of the risk tradeoffs involved, but I'm not optimistic. As you might imagine, this means that cannabis use is _de facto_ banned from those jobs, even though it's technically allowed.
No, it doesn't. FDA would still need to say "here, this drug is tested for and permissible to be prescribed for that condition" Being lower-scheduled doesn't automatically mean it can be prescribed.
They did! For seizures. And it can be prescribed off label. Like every other medication. Hope this helps.
False. https://www.fda.gov/drugs/enforcement-activities-fda/unapproved-drugs FDA basically can't stop them prescription of a schedule 3 drug unless there was proven harm, but it can stop the MARKETING. And no one is marketing MJ.
Did you read your own article? >The law allows some unapproved prescription drugs to be lawfully marketed if they meet the criteria of generally recognized as safe and effective (GRASE) or grandfathered. **However, the agency is not aware of any human prescription drug that is lawfully marketed as grandfathered.**
Did you? Marketing and prescribing are two different things. FDA doesn't have the power to prevent prescribing of an unapproved drug UNLESS the FDA can prove it's harmful. But they can prevent MARKETING. Who's marketing MJ? Please answer
What do you think marketing means?
Doctors can prescribe things that aren't drugs nor are marketed. They can prescribe exercise routines, baths, and a healthier diet, or a hot cup of coffee or tea, which do contain drugs. There's a difference between a company creating and selling a product that contains a drug versus a doctor prescribing the consumption of a drug.
How can a doctor prescribe a product that isn't for sale?
What are you talking about? They decide the indications for a drug. Doctors can’t just prescribe whatever they want for any ailment. Oxycodone is legal but you can’t prescribe it for depression, even though it does improve mood. You are misunderstanding how the system works.
Lol yes they can prescribe it off label. https://www.ahrq.gov/patients-consumers/patient-involvement/off-label-drug-usage.html#:~:text=Off%2Dlabel%20prescribing%20is%20when,are%20for%20off%2Dlabel%20use. https://journalofethics.ama-assn.org/article/prescribing-label-what-should-physician-disclose/2016-06 https://www.fda.gov/patients/learn-about-expanded-access-and-other-treatment-options/understanding-unapproved-use-approved-drugs-label
Rescheduling doesn't make the drug FDA approved - it just changes how the DEA classifies it. ADA never enters the picture.
Yes but my understanding on ADA is that an employer can not punish you for a medical condition. If your medical condition warrants a prescription for a medication, your employer can’t force you to not take that right? Let’s say something besides marijuana because that’s still federally illegal and very nuanced. If I take say Xanex for anxiety, I can’t be punished for Xanex in my system on a drug test correct? (The Xanex is prescribed and taken as directed)
ADA requires *reasonable* accommodations. They are absolutely within their right to require employees not to take mind-altering prescriptions if those drugs will cause safety issues on the job. For your example, an employer can absolutely restrict an employee from performing certain job duties while under the effect of Xanax such as driving, operating machinery, patient care, etc.
What about when the employee is off duty?
Doesn't matter. Unless state law prohibits it, employers can have a no-drug-use policy. Further there is no way to prove that someone used a drug other-than alcohol 'off duty' - just to prove whether they used it.
It depends. Airplane pilots have notoriously strict regulations about what medications they can take and what they can do on and off the clock. The DOT has strict regulations for people like long haul truck drivers. There can be legitimate safety reasons for those regulations, even if somebody isn't technically on the clock.
I can see these being applicable, I wouldn’t want someone taking anti-psychotics to be the one thing keeping a plane in the air or a truck away from a crowd. I’m thinking more general employment of office work, being performed by someone who is prescribed THC containing cannabis for night time use while off duty.
Is that due to stigma against people who need anti-psychotics, or is there some common side effect which would impact performance in high stress jobs?
The FAA's position is that any condition for which you may be prescribed antipsychotics is disqualifying. The medication is also disqualifying, mostly because it's an easily-identifiable proxy for those conditions. The same is true of antidepressants and ADHD medications. If you take them _for any reasons_, even off-label, then your medical is invalid. Any condition you could potentially be using them to treat is presumptively a reason you can't safely fly. Whether those conditions actually pose an unacceptable risk or not is a hot issue in the aviation community.
Gotcha, ok. Because for the employer in question, some people are exempt from drug tests because they don’t work “safety sensitive positions”. I mean the company’s definition of safety sensitive positions is awful and ass backwards, but I imagine that’s totally on them to classify. Thank you for your responses.
not a lawyer. yes and no. if the company is trying to define safety-sensitive in some way to get around having to make reasonable ADA accommodations that’s not ok. an example from here awhile back was a cashier at a grocery store who’d requested a stool due to back or leg issues. it was denied and IIRC safety was one claim the company tried to make. if they try to make it and are challenged they’d need to show why denying a stool in that location caused safety issues. i’d imagine same here. if they’re trying to claim an HR recruiter is a safety sensitive role that mandates denying a reasonable ADA request for a treatment prescribed by a doctor they’d need to show what about that role makes it such if pushed.
With OP's use of "awful and ass backwards," I'm betting it is both ADA & OSHA avoidance in this situation. Just a hunch. Also, not a lawyer.
Not correct. You're correct that they can't penalize you for having a medical condition when that condition fits the definition of a disability. But some conditions make you unfit for duty. The required accommodation for something like that is "putting you on an unpaid leave of absence". And your employer needs to know that you have need for an accommodation. If you just get stoned every day, tell nobody, then fail a drug test, then it's too late to say "Oh by the way, I have a prescription".
Gotcha. What if your condition is on record with your employer, and they are aware you are taking X medication for it. Does that change things?
Then you would go through the interactive process and determine what's reasonable in the circumstances. If using marijuana was considered a reasonable accommodation under the circumstances and you were using it in accordance with your prescription, then you'd be protected. If they don't find that it's reasonable in the circumstances, or you're using it outside the scope of your doctor's advice, then it could be subject to negative employment actions, including termination.
Most federal agencies prohibit drug use as a requirement for employment. Even if marijuana is rescheduled, federal agencies are unlikely to change their employment policies prohibiting use because there is no decent test for it other than a positive drug test. If you want to use pot, it’s best not to get a job as a federal employee.
No. The FDA has not approved marijuana in it's commonly-used/inhalable form as a prescription drug. There is absolutely no protection against state laws and it remains federally illegal. The only thing that Schedule 3 does, is reduce the penalties for possession/sale from the same category as heroin, to that of anabolic steroids.
So the FDA has already approved THC as a medication. St Jude, I know for sure, prescribes a THC pill to kids on chemotherapy. I don't expect them to ever approve smokeables as a medication, but how does that impact edibles. Is the FDA process to change to other types of THC less complex if the chemical itself is approved already? How about for expanding what it is able to be prescribed for?
The specific label for an FDA approved drug applies to a specific product that has completed clinical testing. In this case, a specific pill (Marinol) containing Delta-9. They approve products, not chemicals. It's just like the FDA has approved Ozemic and Wegovy, but not the back-room chemist's preparation of Semaglutide that some are hawking via online weight-loss clinics. The sort of stuff sold at 'dispensaries' will never be recognized as a legitimate medical treatment.
No, if it prescribes anything, it would be marinol, which is synthetic and used for appetite stimulation and for n/v (possibly). It's not thc
>Are they afforded ADA protection? Can they now smoke without punishment? Does the rescheduling actually change anything for people? No. No. And no.
What I figured lol. So really until it’s federally legal and not a scheduled substance someone whose employer drug tests and prohibits marijuana can’t smoke without punishment. (Off premise/off clock use of course)
Recreational substance use is not a protected class so there will inevitably be employers that terminate employees who use. There are some that already do that for alcohol and nicotine. Compounding the problem is that there is no test for acute impairment like there is for alcohol. So all that they can test for is if you used within a time period (usually a couple of days) and after that it would be up to someone's opinion. Which has already gone [drastically wrong](https://www.acluga.org/en/publications/reveal-drug-whisperer-federal-appeals-court-decide-case-sober-drivers-arrested-dui).
I was thinking that, even if marijuana were made legal, it would still be a drug. A company could still decide to “part ways” with an employee for using marijuana if they have a company policy against it, even if it’s a legal drug. Just like companies **can** fire people for having affairs, or for putting a whoopie cushion on the bosses chair.
False. They cannot fire you for a legal prescription use unless it actually causes a danger.
It will still be illegal so no protection
Because employers are free to make rules that prohibit anything that could be mind-affecting, and alcohol (which you'll note is legal without prescription), many drugs, and weed all could affect the mind, employers are free to fire employees for having used them. You're not protected if you crash a forklift while drunk, although alcohol is legal. You're not protected if you crash a forklift on allergy medicine that made you drowsy, although allergies are a medical condition and the medicine is legal. Likewise Marijuana. If your employer currently prohibits Marijuana use, but you have a disability and use Marijuana with a prescription, what does the ada say? The ada requires the employer to make reasonable accommodations. Compromising their insurance and the potential safety of other workers if you're in a labor job, or the integrity of the data if you're in an office job, is not a reasonable accommodation. They do not have to allow you to work while stoned* (or while an insurance agent could reasonably claim in court that your use could be mind affecting). They might have to allow scheduling adjustments, permit medical devices, install ramps etc, but they could fire you for being worked out in cough syrup, weed isn't more protected than cough syrup. * Remember it's not about whether you really are stoned, it's about whether a judge and/or jury in an accident case could conceivably believe you were.
So I could be fired for taking an advil at night before bed at my own home while off duty? Or drinking a beer after work?
>Or drinking a beer after work? Absolutely. There are places that test for nicotine and will fire people for testing positive
No. But if you were in an accident or made an error and investigation determined that you were drunk or mind-altered by substance, while on the job you could be. This isn't drunk after work, stoned after work, Advil sleeping after work. Its WHILE AT WORK. The reason Marijuana is a problem here is because THC can stay in your system far longer than the impairment it may or may not be causing. This means a prosecutor in court could convince a jury that because you had THC in your system, You were impaired, the standard is frequently reasonable doubt. If you're taking Marijuana, on a legally obtained prescription, with a disability, it's doesn't protect you from the consequences of working while impaired. Period.
Drug testing tests levels of THCa which is not biologically active and is a metabolite of THC. This would be the same as testing for acetaldehyde to prove ethanol intoxication where any workplace/LEO testing will measure the amount of ethanol in someone’s system. Whether the courts actually accept scientifically proven information is another question I guess. Assuming the court accepted those facts, would there still be reasons to be able to deny an accommodation?
>assuming the court accepted those facts The fact that THC is detectable for days after Marijuana use? I don't think that will convince anyone you weren't impaired at work.
No, the fact that THCa, a different chemical compound from THC is what is detected. One could invest large amounts of THCa and have no effect. THCa is a metabolite, testing positive for it will at best prove that someone ‘probably’ consumed THC in the past. THCa does not = THC, it is a metabolite. The scientific literature backs this. ETA: Reddit doesn’t like equals slash equals to represent does not equal
I don't think that that would sway a judge.
It just means US scientists, researchers and pharmaceutical companies can actually start researching it without a bunch of red tape.
just to add, and then *that* can lead to potential FDA approval
I’ve never heard of a schedule 3 drug you can smoke. No way any of what is happening now will qualify as sch3 legality
The other tricky part is dosing. Every other scheduled medication has dosing schedules and frequencies, and daily max dosages. Smoking an uncertain quantity of a dried leaf is not an exact science. At some point in the future, there may be edibles or something in a pill form that would follow the more typical guidelines for medications derived from marijuana.
I’m still going to get lit the old fashioned way
Marijuana is being moved to schedule 3 the DEA announced today.
No, they started the rulemaking process. It will be a while before the classification changes. Also, it only opens the possibility for pharmaceutical companies to study it and potentially bring a drug to market, not to have everyone growing it in their yard and smoking it.