An employee with terminal illness or severe pain obtains medical marijuana from a licensed dispensary. His or her employer, however, maintains a drug-free workplace policy that provides for employee drug testing.
What can an employer do under these circumstances? This post is designed to provide a basic snapshot of the current state of the law, and the prominent issues that employers face. As detailed below, employers are generally blanketed by the protections of the at-will employment doctrine, as the vast majority of state marijuana laws alter only the criminal sanctions facing those who legitimately use and possess medical marijuana.
In recent years, there has been a considerable trend in favor of the legalization of marijuana. Twenty-three states (plus the District of Columbia) now permit medical marijuana, and Washington and Colorado additionally allow the recreational use of marijuana. In addition, sixteen other states have marijuana legislation pending.
Within the federal system, drugs subject to regulation are grouped into one of five lists (labeled as Schedules I through V) under the Controlled Substances Act (CSA), 21 U.S.C. §§ 801 et seq. The Attorney General retains authority over whether, and where, to list a particular substance. Currently, both marijuana and tetrahydrocannabinol (THC), the primary mind-altering ingredient found naturally in marijuana, are classified as Schedule I drugs. As the Supreme Court has explained, “Schedule I drugs are categorized as such because of their high potential for abuse, lack of any acceptable medical use, and absence of any accepted safety for use in medically supervised treatment.” Gonzales v. Raich, 545 U.S. 1, 14 (2005).
There has been a recent movement to consider downgrading marijuana from Schedule I and, at the behest of the U.S. Drug Enforcement Administration, the Food and Drug Administration is presently conducting an analysis on the subject. There is not, however, any indication that marijuana or THC will be removed from the CSA schedules altogether. Therefore, marijuana is and will in all likelihood remain illegal under federal law, independent of state laws to the contrary.
Maryland and the District of Columbia, among others, have recently passed legislation that decriminalizes—but does not legalize—marijuana. Significantly, the efforts in the District of Columbia affect only the local enforcement, without reaching federal law in any way. In these jurisdictions, a “qualifying patient” who has been diagnosed with certain medical conditions may legally receive marijuana from a licensed dispensary for medical use in his or her home. The use and possession of marijuana in public remains illegal, although a person who can prove that he is a “qualifying patient” faces only civil penalties (i.e., fines) rather than incarceration.
Drug Use And The Workplace
There are well-documented workplace safety concerns related to marijuana. According to the National Institute on Drug Abuse (NIDA), employees who abuse drugs are more likely than those who do not to “change jobs frequently; be late to or absent from work; be less productive employees; be involved in a workplace accident; [and] file a workers’ compensation claim.” Marijuana, specifically, may cause safety concerns such as “include impairment of short-term memory; altered judgment and decisionmaking; and mood effects, including severe anxiety (paranoia) or even psychosis (loss of touch with reality), especially following high-dose exposures.” NIDA, DrugFacts: Is Marijuana Medicine?. “Marijuana also significantly reduces motor coordination and slows reaction time, which makes it very dangerous to use before driving a car.” Id. Studies have also shown that roughly 9% of marijuana users will become addicted, and THC can remain in a user’s body for up to three months.
Employers may protect workplace safety by prohibiting drug use in the workplace and require that employees “not be…engaging in the illegal use of drugs in the workplace.” 42 U.S.C. §§ 12114(c)(1), (2); see 29 C.F.R. § 1630.3(c). In addition, according to NIDA, successful drug-free workplace programs may lead to “improvements in morale and productivity, and decreases in absenteeism, accidents, downtime, turnover, and theft.”
Medical Marijuana Use Is Not Covered By The ADA
Although the Americans with Disabilities Act (ADA) generally requires employers to reasonably accommodate an employee whose medical conditions require prescription drugs to take them while at work (if prescribed to do so), at least one federal court has concluded that “medical marijuana use is not protected by the ADA.” An employee who is “currently engaging in the illegal use of drugs” is not considered a “qualified individual with a disability” under the ADA. 42 U.S.C. § 12114(a); see 29 C.F.R. § 1630.3(a). The ADA and its implementing regulations define “illegal use of drugs” as the use of drugs the possession or distribution of which is unlawful under the [CSA]. Such term does not include the use of a drug taken under the supervision of a licensed health care professional, or other uses authorized by the [CSA] or other provisions of Federal law. 42 U.S.C. § 12111(6); see 29 C.F.R. § 1630.3(a)(2). Because neither the CSA nor other federal law authorize it, on-site medical marijuana use is not covered under the “supervision of a licensed health care professional” exception.
There is no requirement that employers accommodate off-site medical marijuana use, either. Merely being licensed to use medical marijuana is an insufficient basis for employers to take disciplinary action, because the medication relates to the employee’s disability (e.g. cancer, osteoarthritis, or severe pain). Where the employee tests positive for marijuana, however, even if licensed to use it for medical purposes, employers have discretion to take such action as a neutral enforcement of policies against employee misconduct.
Employee Discipline Relating To Medical Marijuana
State “compassionate use” laws that prohibit certain criminal penalties and adverse government licensing decisions for medical marijuana do not affect the presumption of at-will employment or otherwise create a new right to sue for employees who face adverse employment actions stemming from their medical marijuana use (such as failing an employer’s drug test).
Courts interpreting these state laws in the context of employees who challenge employers’ decisions not to hire, to discipline, or to terminate them have consistently ruled in the employer’s favor. These include courts in Colorado (Curry v. MillerCoors, Inc., 2013 U.S. Dist. LEXIS 118730 (D. Colo. Aug. 21, 2013); Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. App. 2013)) and Washington (Roe v. TeleTech Customer Care Mgmt., 216 P. 3d 1055 (Wash. 2009)), as well as courts in California (Ross v. Ragingwire Telecommuns., Inc., 174 P.3d 200 (Cal. 2008)); Maine (Savage v. Maine Pretrial Servs., 58 A.3d 1138 (Me. 2013)); Michigan (Casias v. Wal-Mart Stores, Inc., 764 F. Supp. 2d 914 (W.D. Mich. 2011), aff’d, 695 F.3d 428 (6th Cir. 2012)); Montana (Johnson v. Columbia Falls Aluminum Co., LLC, 350 Mont. 562, 2009 Mont. LEXIS 120, at *5 (Mont. Mar. 31, 2009)); and Oregon (Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Ore. 159, 169 n.7 (2010)).
An employee who uses medical marijuana will also likely not be able to recover employment benefits. For example, an employee who brought in marijuana-laced candy (colloquially known as an “edible”) into her workplace was denied unemployment benefits on the ground that she committed gross misconduct by violating the company’s stated drug-free policy. Canning v. Emp. Sec’y Dep’t., 2014 Wash. App. LEXIS 877 (Wash. Ct. App. Apr. 14, 2014). But see Vialpando v. Ben’s Auto. Servs., 2014 N.M. App. LEXIS 50 (N.M. Ct. App. May 19, 2014) (requiring employer to provide workers’ compensation benefits for employee who was certified for state’s medical marijuana program).
An employer wishing to ensure that medical marijuana does not negatively affect the health and safety of its workplace should maintain and update its drug-free policies accordingly. Specifically, employers should insert language clarifying that, unlike other prescription medications, there is a zero-tolerance policy toward medical marijuana, in order to alleviate confusion and provide clear advance notice to employees. If the employer chooses to utilize drug testing of its employees, any such testing policy should similarly make clear that positive tests for marijuana may result in discipline, up to and including termination. An employee who complies with state law in using and possessing medical marijuana cannot be disciplined for that fact alone; if, however, he or she violates neutral company policy by using in the workplace or failing a drug test, the employer may legitimately take action without facing the risk of future liability. Please let us know if you have questions about such policies, relevant state laws or other questions on this unique and evolving issue.