Clearing the Smoke: Medical Marijuana and the Workplace

Numerous states plus Washington, DC, have enacted medical marijuana laws, and additional states have legalized the recreational use of marijuana. At the same time, federal law prohibits the possession of marijuana. To help staffing firms navigate the myriad and, in some cases, conflicting laws, ASA has published an issue paper—“Clearing the Smoke: Medical Marijuana and the Workplace”—authored by Diane J. Geller, Esq., partner in the law firm Fox Rothschild. The issue paper addresses how staffing firms can lawfully maintain a drug-free workplace and comply with the ever-changing legal landscape. See below for the issue paper. 

Summary

Despite the fact that many states have adopted some form of medical marijuana legislation and several have extended their statutes to legalize the recreational use of marijuana, a lack of consistency among statutes continues to cause an overall lack of clarity with which employers must contend. Adding to employers’ headaches are certain states where local law makes the ability to comply with federal law challenging. Employers in the staffing industry striving to maintain a drug-free workplace policy and affirmative plan of action regarding the use of marijuana in the workplace must keep many considerations in mind.
In designing a policy, the employer must make the initial decision as to whether or not to drug test all persons before placement, or only those that are required to be tested for a certain client. Additionally, a decision needs to be made as to whether or not to test for marijuana. The decision needs to be made in part based upon state law, federal law, and the types of positions being filled—as well as from a safety perspective. If the intent is to exclude marijuana use, then the company should use the definition of federally prohibited drugs in its policy. Doing so will include marijuana (medical and recreational) in the list of prohibited drugs. While no state law mandates that an employer permit use of medical marijuana in the workplace, employers in states where state law requires an accommodation for use of medical marijuana will have to take other steps to try to address use. This may include adopting very clear and detailed job descriptions as well as following guidelines similar to those for the Americans With Disabilities Act (if the employee tests positive and presents the required medical marijuana card).
From the employer’s perspective, the ability to maintain a drug-free workplace policy remains available in most states where marijuana use for medicinal or recreational purposes has been legalized. One of the key points is to ensure that the definition of “illegal” or prohibited drugs is stated in the broadest terms possible. That means if the company wishes to exclude marijuana, the policy must use a definition that includes illegal drugs as defined under the Federal Controlled Substances Act. It is also recommended that the written policy clearly state that a positive test result for any illegal drugs, including marijuana, is a violation of the company’s policy and that the employer reserves the right to take an adverse action to the full extent of the law based upon the test results.
Employers can legally terminate the employment of any employee who violates the policy, including if he or she engages in the use, sale, possession, or transfer of marijuana in the workplace. There is presently no statute that requires the employer to permit the active use of marijuana at the workplace. Therefore, most employers are dealing with the employee’s off-duty use of marijuana and its residual effects. Unlike alcohol, which is generally only detectable for 48 hours after use, marijuana is detectable in the urine for up to 11 weeks.
Medical marijuana in the workplace continues to be surrounded by a thick blue haze. Twenty-five states plus Washington, DC, and Guam have adopted some form of medical marijuana legislation, and four states plus DC have extended their statutes to legalize the recreational use of marijuana. Despite this trend, there is a lack of consistency in the statutes, adding to the lack of overall clarity. Some of that miasma is caused by the fact that marijuana, although legalized under the laws of certain states, remains illegal under federal law as a Schedule 1 drug under the federal Controlled Substances Act. Congress has taken steps to mitigate the effect of the CSA by removing funding from federal agencies, including the Drug Enforcement Administration —with the stated intent being to thwart federal agencies from using funds appropriated by that bill to “prevent” states from “implementing” their medical marijuana laws. Regardless of the lack of funding for certain of the programs, those companies who are federal contractors or who have to comply with federal laws such as those of the Department of Transportation must comply with all the federal requirements. As is discussed below, there may be some challenges when operating in certain states where local laws appear to make the ability to comply with federal law more challenging.
There have been a few court cases that have supported the employer’s right to restrict use of marijuana even for medicinal purposes, even when the use did not occur in the workplace, and even if the state law made the use of medical marijuana (and recreational marijuana) legal. A recent example is the Coats v. Dish Network LLC case in Colorado. Coats, a quadriplegic who used marijuana to alleviate painful muscle spasms, was terminated by Dish Network for violating the employer’s drug-free workplace policy banning use of a federally prohibited drug after testing positive for tetrahydrocannabinol (THC) during a random drug test. Because his off-duty use was lawful under Colorado statutes, he claimed protection under Colorado’s lawful activities statute, which generally prohibits employers from discharging an employee based upon off-duty or off-employer-premises activities. In the Coats case, the court found that the use of medical marijuana—even in an off-duty context—was not a “lawful activity” under both the state and federal law. Therefore, since it is illegal under federal law, the court in Colorado found it was not a “lawful activity” in Colorado.
California courts have also relied upon the federal prohibition of marijuana use to reject an employee’s complaint of discrimination based on a medical condition. In that case, although the employee was using marijuana pursuant to the state’s Compassionate Use Act to treat pain from injuries suffered while in the U.S. Air Force, the employer terminated the employee for testing positive for the use of illegal drugs. The court found the discharge legal, citing the fact that marijuana was illegal under federal law. Courts in Oregon, Montana, and Washington have also held that the state statutes do not confer a “right” to smoke marijuana. Like Colorado and California, they have acknowledged the right of an employer to take an adverse employment action against employees with positive test results in violation of company policies.
Arizona, Delaware, and Minnesota have endeavored to legislate around the federal law by adopting statutes that prohibit employers from terminating an employee for testing positive for marijuana alone if the employee is in possession of a valid medical marijuana card. In those states, the employer would have to establish that the employee was impaired in the workplace prior to the discharge for a positive drug test for marijuana.
Other state statutes, such as New Jersey’s, specify that the employer does not need to accommodate marijuana use in the workplace but is silent as to off-duty use. Still other state statutes, such as those in Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Hampshire, New York, Rhode Island, Pennsylvania, and DC, prohibit employers from discriminating against an employee for possession of a medical marijuana card. Nevada’s statute clearly states that the employer is not required to permit an employee to use medical marijuana in the workplace, nor does it require the employer to modify the job or working conditions of a person who engages in the use of marijuana. However, other states require an employer to “attempt to make reasonable accommodations for the medical needs of an employee who is engaged in the medical use of marijuana if the employee holds a valid registry identification card…” Those statutes still provide the caveat that the employee who is using medical marijuana does not pose a harm to his or herself or others, or impose an undue hardship on the employer, and that such use does not prohibit the employee from fulfilling any and all of his or her job responsibilities. This type of requirement is likely to present legal challenges in the future.
Despite the requirement of accommodation under state law, because of marijuana’s classification as a Schedule 1 drug under the CSA, to date employees have not been able to claim the protection of the federal Americans With Disabilities Act. Furthermore, no state or federal law has required an employer to accommodate an employee by permitting use during working hours. However, in the same light, no court has determined that off-duty marijuana use is not a reasonable accommodation. Employers with federal contracts are generally under no obligation to accommodate the medical use of marijuana related to compliance with the federal requirements; however, the issue has yet to be tested under the law of a state that requires accommodation.
Off-duty use of medical marijuana presents a slippery slope, because once the employer becomes aware of the medical marijuana use, it is likely also aware of a medical issue that could signal that the employee may be disabled under the ADA definition—thereby resulting in protection for the employee due to his or her medical information. In light of state statutes such as the one in Nevada, employers may still need to consider if they wish to, or want to make a practice of, engaging in the interactive process (as one does under the ADA) to determine if a reasonable accommodation can be reached other than permitting the use of medical marijuana. The unsettled nature of this issue continues to present an ongoing tension between employers and the rights of disabled employees to use marijuana to address their medical conditions.
This is well illustrated in our own staffing industry by the pending case in New Jersey, which highlights the claim of accommodation under the New Jersey Law Against Discrimination. The case involves a staffing company’s temporary employee who had a valid state medical marijuana card due to a disability and was terminated for a positive drug test after disclosing the existence of the card and his disability, and commencing an assignment. The case is in its early stages—an amended complaint was filed in June 2016—but it is one to closely monitor.
When faced with the issue of drug compliance in the workplace, it is important for employers to make an affirmative plan of action that includes the following:
1. Adopting a drug-free workplace policy. Make certain that you clearly define what will be considered an illegal drug, including stating if the testing will include the use of marijuana. In connection with such policy, review all of the testing programs to ensure that you have all the releases required. Make certain you are using a reputable laboratory with a medical review officer. Do not take disciplinary action for a positive test without a confirmatory test. Make certain your policy and protocol comply with applicable state laws. For example, some states prohibit random drug testing.
2. Taking affirmative steps to communicate your drug-free workplace policy to your employees. Always follow your policies on a consistent basis.
3. Reviewing job descriptions and including in those descriptions all job duties and responsibilities—not just the essential functions. State laws like Nevada’s provide that the employer is not required to accommodate the use of medical marijuana if the employee cannot fulfill any or all of his or her job responsibilities.
4. Not asking about the possession of medical marijuana cards in the hiring process, even in states where medical marijuana is permitted. Follow the same procedure as you do with regard to ADA questions. While the possession of a medical marijuana card or the use of medical marijuana is not protected by the ADA, the underlying medical reason is likely protected.
5. Training managers to recognize impairment. Although using marijuana while on the job is never appropriate, neither is impairment that results in the inability to perform job duties. Supervisors should not rush to judgment, but should seek direction from management and counsel, if appropriate, to determine a course of action. When taking action, make certain to document the reasons—including the observations.
Ultimately, while there are few reported cases regarding implications of the use of medical marijuana in the employment setting, the law continues to develop. Therefore, employers need to tread softly until more clarification is provided in states that permit the use of medical marijuana on how the state law with be enforced in light of the federal law. It is highly recommended that employers remain vigilant regarding changes in local and state laws on medical marijuana, and consult their local counsel when developing or updating a drug-free workplace policy.
? 2016 by the American Staffing Association. No part of this ASA issue paper may be reproduced without permission.