September 12, 2017
It is projected that legal marijuana sales will reach more than $20 billion dollars by 2021. Nearly 20 percent of all Americans live in jurisdictions where they can light up legally. Nine jurisdictions, including the District of Columbia permit recreational use and 29 (including, Delaware, Maryland, New Jersey, New York and Pennsylvania) permit medical usage. Notwithstanding any state law, Federal law still makes any usage illegal.
The conflict between federal law and the laws of those jurisdictions that permit either recreational or medical use of marijuana creates a conundrum for employers; and that conundrum has become more difficult to resolve as the result of recent state court decisions.
Until this year, employers were reasonably safe in having and enforcing a no tolerance policy for even medical usage of marijuana. If an employee were tested and the artifacts of its usage were found the employee could be disciplined and even terminated lawfully. Cases so holding, such as a 2015 decision of a Colorado court, rested on the federal law banning any use that was held to trump state law permitting even medical usage. You might have a right under state law to use marijuana but no right to keep your job, reasoned such courts. And, it mattered not that the employee was not under the influence while on duty.
Employers in states where usage is permitted for medical reasons no longer can rely on this being the law in their state. Recently, courts in Massachusetts and Rhode Island have rejected the “federal law” premise for termination of employment, and found employers to have violated state laws prohibiting discrimination on the basis of disability.
In the Massachusetts case, the employee used medical marijuana to treat her Crohn’s disease, and her employment was terminated after she failed a drug test. There was no evidence that she was “under the influence” (other than pain relief) of the drug while on duty or unable to safely fulfill her job duties. The state Supreme Court rejected the Employer’s “federal law” defense and found that the Employer had discriminated against the employee based on its failure to accommodate her disability.
Similarly, in Rhode Island, an offer of employment was rescinded after the prospective employee informed the Employer that she would test positive for marijuana she was lawfully using. A Superior Court Judge ruled that the Employer violated the state’s medical marijuana statute which protects medical marijuana cardholders and engaged in disability discrimination.
The Massachusetts and Rhode Island cases suggest a shifting legal landscape that Employers need to be aware of and think through how they will react to situations where an employee tests positive for marijuana in states where it is legal to possess and use. Employers located in states where recreational use of marijuana is lawful also need to be concerned with the possibility of other state laws that limit an Employer’s right to discipline or take adverse action against employees for engaging in lawful activities during non-work hours.
An Employer is not required to tolerate an employee being under the influence of even medical marijuana while on duty. If the employee is not fit for duty, the fact that the use of medical marijuana is the reason is no more a justification for the unfit condition than would be the use of any other legally prescribed medication. Certainly, use of recreational marijuana on the job need not be tolerated.
Employers need to exercise great care in the use of drug tests. Artifacts of marijuana can remain for a considerable time. The presence of those artifacts at the time of the drug test is not necessarily evidence that the employee was under the influence of the drug while on duty. This suggests that other evidence such as video (but be aware of privacy issues) or other evidence of erratic behavior while on duty should be used to determine if the employee was under the influence while on duty, and an appropriate drug test should be employed to indicate not merely the presence of but the amount in the system at the time of the test. Even the amount is not definitive proof of being under the influence, because different people have different tolerances to drugs and those tolerances can change over time and with usage.
Employers should consider eliminating “no tolerance” drug policies in favor of policies that take into account any state law obligation to accommodate a disability in conjunction with lawful use of medical marijuana and managers of companies need to be trained in the complexity of this issue so that potentially unlawful action against an employee is not taken without appropriate thought.
Employers should avoid knee jerk reactions to learning that an employee is using medical marijuana. The use by a truck driver or an employee who operates dangerous equipment is different from use by an office worker. Employers should consult applicable state law and discuss the particular facts of any situation with experienced employment counsel before taking any action.
Finally, in states where medical marijuana is lawful, Employers must remember the application of the Health Insurance Portability and Accountability Act and the need to maintain confidentiality of medical information. The fact of lawful use of medical marijuana should be kept only in an employee’s medical file separate from any personnel records.
For additional information, please contact Bob Small at firstname.lastname@example.org or via phone at 215.495.6541.