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Regulation and Compliance > State Regulation

4 burning questions about medical marijuana

By Thomas R. Bundy, III, Esq., Sean P. O'Brien, Esq.

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Many of us have laughed at movie scenes from cult classics like Half Baked, Pineapple Express, Dazed and Confused, or Cheech & Chong’s Up in Smoke in which the hapless stoner employee is depicted as someone who cannot perform even the simplest task correctly or fails to show up for work altogether because the employee is so “high” from smoking marijuana. Unfortunately for employers, the legalization of marijuana is no laughing matter.

The use of marijuana is now legal for medical necessity in 23 states and for recreational purposes in a few states (with legislation pending to legalize it in several other states). Marijuana use is on the rise. The popular sentiment from cash-strapped state legislatures — driven principally by a desire to capture tax revenues on the sale of the drug — is let’s “legalize it.” For employers, however, that sentiment is not so popular.

See also: Weed users avoid smoker penalties at 29% of U.S. life insurers

The right to use marijuana legally is neither a laughing matter nor a popular sentiment for employers because these new rights create complex employment law questions for limiting or prohibiting employees from using marijuana, which has been a longstanding employment practice. Answering these questions is further complicated by the fact that possessing or using marijuana remains a federal crime without exception. 

Some legal practitioners advise employers to treat marijuana like alcohol, given both have impairing effects on cognitive functions of the body. But unlike alcohol, marijuana is legalized in most instances for medicinal purposes; consequently, employers cannot simply lump marijuana under employment policies related to alcohol without concern for potential exposure. Because state laws in this area are so new, there are few judicial decisions on which to rely when deciding how employment practices may be affected by these new laws or how to reconcile the divergence between state and federal laws. 

So what’s an employer to do? Here is a look at four issues employers are likely to encounter as they navigate this relatively uncharted legal landscape.

1. Can employers prohibit employees from using medical marijuana?

The so-called state medical marijuana laws generally permit a patient to seek a doctor’s authorization to obtain and use marijuana for medicinal purposes pursuant to state registration and identification card requirements. These laws seemingly create an inherent conflict in the workplace. On the one hand, the employee’s doctor can write a prescription for a drug deemed a medical necessity pursuant to a statutory grant of authority. But on the other hand, employers have legitimate business concerns based on safety and production reasons for wanting to prohibit employees from using marijuana altogether, including when the employee is off the clock. 

So, how is this conflict reconciled? Do medical marijuana laws prevent an employer from making and enforcing zero-tolerance policies against marijuana use (including for medicinal purposes)? The answer is: It depends.

See also: Employees’ medical marijuana use not protected under state law says Colorado Supreme Court

Employers should be aware that certain states, such as Arizona, Delaware, Minnesota and Nevada (Az. Rev. Stat. 36-2813; Del. Code Title 16, § 4905A; 2013 Minnesota Senate File No. 2470), expressly prohibit employers from firing an employee for a positive marijuana test that results from off-duty marijuana use for medicinal purposes if the employee has otherwise complied with state law.

According to Nev. Rev. Stat. § 453A.800, “the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not (a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or (b) Prohibit the employee from fulfilling any and all of his or her job responsibilities.” Yet, other jurisdictions do not have these so-called anti-discrimination provisions in their medical marijuana statutes and thus resolve this issue differently.

Courts in some states have held that employers can enforce zero-tolerance drug policies even if medical marijuana is legal. These courts have reasoned that medical marijuana laws are merely decriminalization statutes, which do not provide employees with any tangible rights. In Ross v. RagingWire Telecommunications, Inc., the court found that the plaintiff could not state cause of action under California medical marijuana law because the state law did not change that medical marijuana was illegal under federal law and did not provide cause of action against employers implementing zero-tolerance policy. [See also Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 2011, and Savage v. Maine Pretrial Servs., Inc., 2013]

The Colorado Supreme Court just upheld the lower court decisions in Coats v. Dish Network, LLC, a case in which the employer terminated a quadriplegic who used medical marijuana pursuant to a prescription for debilitating muscle spasms. The employer terminated the employee for testing positive for marijuana even though he was never under the influence at work.

The employee sued for wrongful termination under Colorado’s “Lawful Activities” law (COLA), which prohibits termination for off-the-clock behavior that is legal. The Colorado trial court dismissed the claim, holding that the termination was lawful, and the Court of Appeals affirmed. The Colorado Court of Appeals explained in affirming the trial court’s dismissal of the claim that the employee’s marijuana use was not a “lawful activity” under COLA since marijuana use remains unlawful under federal law. 

Employers must engage their legal advisors to keep them informed of the legal landscape in each state in which the employer conducts business. Presently, there is no uniform approach to determining whether an employer can prohibit employees from using medical marijuana. 

2. How do state medical marijuana laws affect companies that work with the federal government?

The Drug Free Workplace Act (DFWA) requires some federal contractors and all federal grantees to enforce zero-tolerance work policies that prohibit the use of illegal drugs in the workplace. As a consequence, private businesses that fall under the DFWA’s definition of federal contractor or grantee frequently ask: What about medical marijuana?

A few state statutes legalizing marijuana for medicinal purposes have recognized the conflict between federal laws, like the DFWA, and state medical marijuana laws. These state statutes provide an exemption that excludes the authorization of marijuana use for medicinal purposes if federal laws prevent it. Az. Rev. Stat. [36-2813 (2011)] says that “unless failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate” based on a qualified patient’s testing positive for medical marijuana. 

The DFWA does not specifically regulate off-duty drug use, however. Nor does the DFWA require drug testing by companies that qualify as a federal contractor or grantee.

Thus, plaintiffs’ lawyers representing employees will highlight and argue that any exclusion for federal law purposes does not apply to off-the-clock activities. In the end, the determination of this issue will likely be raised in the highest court (pun intended) and will involve complex federal preemption arguments and analysis.

In the interim, employers who fall under the purview of the DFWA should make sure their policies expressly prohibit drugs in the workplace, and they should know whether they are in a state that would allow for a zero-tolerance policy. These employers should also consider obtaining guidance from the Department of Labor or other agencies.

3. Are employers required to accommodate an employee’s use of medical marijuana if used to treat a disability?

The Americans with Disabilities Act (ADA) prohibits discrimination against employees with disabilities, i.e., physical or mental impairments that substantially limit major life activities. [See 42 U.S.C. § 12102] Employees who legally use prescribed drugs to treat a disability are generally protected under the ADA. The protections afforded under the ADA generally impose a legal duty on employers to accommodate the employee’s drug use, including potential side effects. If, for example, an employee takes medication to treat a disability, and that medication causes the employee to become drowsy, the employer may have to accommodate the employee’s medication schedule by conforming the employee’s work schedule. 

Naturally, the employer becomes concerned about an employee “lighting up a joint” at work because it is an ADA-protected activity. But, employers can relax here. The ADA explicitly excludes from protection employees who use illegal drugs. [See 42 U.S.C. § 12114]  Notably, an employee’s marijuana use need not occur on the same day or immediately before to justify an adverse employment action. Courts generally hold that “an individual is currently engaging in the illegal use of drugs if the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.” [See Mauerhan v. Wagner Corp., 649 F.3d 1180, 1187 (10th Cir. 2011)]

And, marijuana remains illegal under federal law. To date, state courts have generally held that an employee’s right to use medical marijuana does not impose an obligation on employers to accommodate that use under state law. Of course, the judicial decisions obviating the need for employers to provide employees using medical marijuana with a disability accommodation are not from states with explicit anti-discrimination medical marijuana provisions. 

In states prohibiting discrimination on the basis of medical marijuana use, employers need to determine the scope of liability under applicable state disability laws, if any. These employers must also ensure that their disability policies are enforced uniformly to avoid arguments that the employer applied policies selectively and discriminatively to employees who have disabilities like cancer, HIV/AIDS, glaucoma or multiple sclerosis, since these employees are often treated with medical marijuana.   

4. Can employers screen applicants for medical marijuana use? 

The EEOC has issued guidance regarding pre-employment disability-related questions and medical examinations that is instructive. The Commission generally advises employers not to ask applicants about lawful drug use because such questions are likely to elicit information about a disability. However, employers generally can ask about current illegal drug use because such use is not protected under the ADA, and marijuana remains illegal under federal law. [See Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations]  

[Related: Marijuana: An emerging coverage risk]

Practically speaking, employers must comply with applicable state laws, including anti-discrimination provisions relating to medical marijuana. If an employer inquires about medical marijuana use in a state that prohibits discrimination against medical marijuana users, that employer could be exposed. Generally, employers are best served by specifically carving out medical marijuana from pre-screening questions about illicit drug use.

The landscape of legalized marijuana use is relatively uncharted territory. Employers need to be cognitive that the treatment of marijuana from state to state is now different, and one-approach solutions are more difficult. Companies should work closely with their counsel to monitor this rapidly developing area of law to ensure compliance and limit exposure. 

Thomas R. Bundy, III, Esq., is a partner at Sutherland Asbill & Brennan LLP in Washington, D.C., where he co-heads the labor and employment team and handles a variety of complex litigation matters. He may be contacted at [email protected].

Sean P. O’Brien, Esq., is an associate and a member of the labor and employment team at Sutherland Asbill & Brennan LLP in Washington, D.C. where he represents clients in various commercial litigation matters. He may be reached at [email protected].

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