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.
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.
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.