Medical Marijuana

The issue of medical marijuana has been getting a lot of attention lately, particularly following the Obama administration's announcement last fall that it would not raid medical marijuana dispensaries if they were dispensing marijuana in accordance with state law. Since then, the number of dispensaries has exploded in the 14 states that have enacted medical marijuana laws. These states are Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Several other states are likely to enact similar laws soon. It is estimated that there are more than 300,000 medical marijuana users in the country today.

State Laws vs. Employer Policies

In the employment context, the medical marijuana discussion focuses primarily on the friction between these state laws and employers' drug policies, many of which provide “zero tolerance” for employees (or job applicants) who test positive for marijuana or other illegal drugs. The majority of employers use some form of drug testing as part of their drug policy. This may include a pre-employment drug screen, suspicion-based testing, post-accident testing and/or random testing. One of the primary benefits of refusing to employ anyone who tests positive for illegal drugs, of course, is ensuring that employees are not impaired at the workplace.

So, when an employee presents his/her employer with a valid doctor's prescription for the use of marijuana (either before taking a drug test or after testing positive), employers are faced with a difficult dilemma. This is particularly true given the fact that a positive test for marijuana does not necessarily mean that the employee was impaired at work. In fact, it may be ' and often has been in many of the cases decided thus far ' that there is no reason to believe the employee ever came to work impaired but, rather, that he/she only used marijuana away from work and pursuant to a doctor's prescription.

Employers in these circumstances are left to decide whether to: 1) enforce its policy and terminate (or refuse to hire) an employee after a positive drug test; or 2) accommodate medical marijuana users by making an exception to their drug policy. There is no easy answer to this question, and employers making this determination should consider the specific circumstances and the particular state statute involved.

Negative Media Attention

However, much of the media attention on this issue has been unfavorable to employers. The reason for this is that there is a natural and obvious desire to permit patients to use medications prescribed by their doctors, especially when dealing with the pain and discomfort associated with a serious medical condition. Accordingly, employees who have been fired for their off-duty use of medical marijuana have found support in their claims that this is discriminatory and that their employers should be required to make an exception to their drug policies as an accommodation of their medical condition.

Despite this, most of the courts that have analyzed this issue have found that the employer was entitled to decide whether to permit an exception to its drug policy for medical marijuana users. The basis of these holdings has generally been twofold.

What the Laws Say

First, marijuana is still illegal under federal law. Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (commonly referred to as the Controlled Substances Act) makes possession of marijuana illegal. The state statutes do not change that ' and they cannot change that ' because federal law trumps state law. Any doubt about this was removed in 2005, when the United States Supreme Court held that the federal government had the right to regulate marijuana as it saw fit regardless of conflicting state laws permitting its use. See Raich v. Gonzales, 545 U.S. 1 (2005). So while the state statutes provide protection against being prosecuted by the state for possession of marijuana, they generally do not protect employees in the employment context.

Every state law is different. For example, in Colorado, the right to use medical marijuana is enshrined in the state's constitution. Further, Colorado, like some other states, has a “Lawful Off-Duty Statute” that prohibits employers from disciplining employees for off-duty legal conduct. Similarly, the Michigan statute prohibits any business from denying “any right or privilege” to a medical marijuana user. So the analysis in these states may differ from that in other states. But the point remains that possession of marijuana is still illegal in all 50 states, and courts thus far have generally recognized the employer's right to enforce policies that prohibit this illegal conduct.

Second, holdings favorable to employers on this issue have also relied on the employer's right to take steps to maintain a safe workplace. Indeed, under the Occupational Safety and Health Act (and similar state statutes), employers are obligated to provide a workplace free from recognized hazards. This obligation could be read to include a duty to take reasonable steps to ensure that employees are not impaired at work and in a position to harm themselves or others.

For this reason, some federal laws require drug testing of employees. The prohibition of marijuana use for any purpose continues to be a mandate for federal contractors under the Drug-Free Workplace Act of 1988. Additionally, industries regulated by the Department of Defense and Nuclear Regulatory Commission have federally mandated requirements to maintain a drug-free workplace. Likewise, the Department of Transportation has regulations that specifically provide that transportation workers may not use marijuana even in states where its use is legal. As such, for employers covered by these laws, the decision is very clear ' they must not employ anyone who tests positive for illegal drugs, including medical marijuana users.

Strong Incentives

Even aside from those industries and positions where a drug-free workplace is mandated, employers have strong incentives to ensure that no one is coming to work impaired. This is especially true for employees who are operating heaving machinery or saws, driving forklifts, or working in some position where the consequences could quickly turn tragic if they were impaired on the job. Even if an employee assures the employer that he/she will only use medical marijuana away from work, the only way an employer can be certain of that is to maintain its “zero tolerance” policy and refuse to employ anyone who tests positive for illegal drugs.

That does not mean, however, that employers should blindly continue to enforce their “zero tolerance” policies in states where medical marijuana use is permitted under state law. Rather, employers need to decide whether they want to make an exception for medical marijuana users. There could be several reasons for an employer to make an exception to its policy.

First, an employer may simply not want to terminate employees who are strong performers and only use medical marijuana away from work, particularly since they are dealing with a serious medical condition. Of course, it is important for employers to be consistent in their policies. In other words, making an exception to its drug policy for one employee who uses medical marijuana and not for another may leave an employer exposed to a disparate treatment discrimination claim. But the point remains that employers may have a legitimate desire not to terminate a medical marijuana user. This is particularly true if the employee works in a position where the potential danger if he/she came to work impaired is much less than the types of positions discussed above (i.e., receptionist, cashier).

Second, employers must also weigh the risk and cost of getting sued by an employee, under either the ADA or a state statute. Under the ADA, an employer may not discriminate against a “qualified individual with a disability” for obtaining treatment for that disability or for the side effects of that treatment. The ADA expressly provides that an employer may: 1) prohibit the “illegal use of drugs” by all employees at any time; and 2) require that employees not engage in the “illegal use of drugs” in the workplace. The term “illegal use of drugs” means the use of drugs, the possession of which is unlawful under the federal Controlled Substances Act. The term thus includes the use of marijuana for any purpose. For that reason, the ADA should not act as a bar to an employer's discipline of an employee who is using medical marijuana. This should not be interpreted to mean that such lawsuits would not be filed, and employers must still face the burden and expense of defending them.

Third, predicting the results of lawsuits is never an exact science, and it is far from certain that an employee who brings a claim against his/her employer, either for failing to accommodate the employee's disability or under a state statue, will not prevail. If the medical condition for which marijuana has been prescribed is a disability, an employee may be able to show that he or she is a “qualified individual with a disability” under the ADA. Thus, for an employment decision citing current marijuana use, an employee could state a viable claim if he or she could show that: 1) his or her underlying disability was a motivating factor in the employer's decision even if the employer was also motivated by the employee's “illegal use of drugs”; or 2) his or her “illegal use of drugs” was a mere pretext for discrimination on the basis of his underlying disability. In other words, an employee could contend that the failed drug test was not the real reason for the employment decision but, rather, that the employer's real motivation was the employee's disability.

For these reasons, employers who wish to continue to apply their “zero tolerance” policies for all employees, including medical marijuana users, should review their drug-testing policies and make sure they clearly provide that the prohibition on illegal drugs includes marijuana prescribed and used under state medical marijuana laws. This will help protect employers from the claims discussed above, and refute an allegation that the employer's stated reason for the employment decision (the positive drug test) was merely a pretext to mask the employer's discriminatory motive.

Recommendations

Employers can take several steps to minimize the risk of an employee lawsuit for negative employment actions related to the use of medical marijuana while maintaining a drug testing policy.

• Make sure the drug testing policy clearly prohibits the use of any drugs and other controlled substances that are illegal under federal or state law.
• When faced with an employee believed to be under the influence of a drug, document the facts that demonstrate the suspicion. It is far easier to defend a termination based on working under the influence than it is for a positive test.
• If you are in a federally regulated industry such as transportation, make reference to that fact in your policies and in any disciplinary or other negative employment actions you take. Federal law will trump any stronger state protections.

If you are not in a federally regulated industry, consider whether the potential exposure is worth the benefits derived from a zero tolerance drug policy. You may be better off instituting a policy that allows for accommodation of medical marijuana users who have valid prescriptions and who will not be under the influence at work.

Jeffrey S. Shapiro ([email protected]) is a partner with the Labor & Employment Department at McGuireWoods LLP. He advises clients on a wide range of employment-related issues, including wrongful discharge and employment discrimination. Eric B. Martin ([email protected]) is an associate with the firm. He focuses on traditional labor and employment law.

The issue of medical marijuana has been getting a lot of attention lately, particularly following the Obama administration's announcement last fall that it would not raid medical marijuana dispensaries if they were dispensing marijuana in accordance with state law. Since then, the number of dispensaries has exploded in the 14 states that have enacted medical marijuana laws. These states are Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Several other states are likely to enact similar laws soon. It is estimated that there are more than 300,000 medical marijuana users in the country today.

State Laws vs. Employer Policies

In the employment context, the medical marijuana discussion focuses primarily on the friction between these state laws and employers' drug policies, many of which provide “zero tolerance” for employees (or job applicants) who test positive for marijuana or other illegal drugs. The majority of employers use some form of drug testing as part of their drug policy. This may include a pre-employment drug screen, suspicion-based testing, post-accident testing and/or random testing. One of the primary benefits of refusing to employ anyone who tests positive for illegal drugs, of course, is ensuring that employees are not impaired at the workplace.

So, when an employee presents his/her employer with a valid doctor's prescription for the use of marijuana (either before taking a drug test or after testing positive), employers are faced with a difficult dilemma. This is particularly true given the fact that a positive test for marijuana does not necessarily mean that the employee was impaired at work. In fact, it may be ' and often has been in many of the cases decided thus far ' that there is no reason to believe the employee ever came to work impaired but, rather, that he/she only used marijuana away from work and pursuant to a doctor's prescription.

Employers in these circumstances are left to decide whether to: 1) enforce its policy and terminate (or refuse to hire) an employee after a positive drug test; or 2) accommodate medical marijuana users by making an exception to their drug policy. There is no easy answer to this question, and employers making this determination should consider the specific circumstances and the particular state statute involved.

Negative Media Attention

However, much of the media attention on this issue has been unfavorable to employers. The reason for this is that there is a natural and obvious desire to permit patients to use medications prescribed by their doctors, especially when dealing with the pain and discomfort associated with a serious medical condition. Accordingly, employees who have been fired for their off-duty use of medical marijuana have found support in their claims that this is discriminatory and that their employers should be required to make an exception to their drug policies as an accommodation of their medical condition.

Despite this, most of the courts that have analyzed this issue have found that the employer was entitled to decide whether to permit an exception to its drug policy for medical marijuana users. The basis of these holdings has generally been twofold.

What the Laws Say

First, marijuana is still illegal under federal law. Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (commonly referred to as the Controlled Substances Act) makes possession of marijuana illegal. The state statutes do not change that ' and they cannot change that ' because federal law trumps state law. Any doubt about this was removed in 2005, when the United States Supreme Court held that the federal government had the right to regulate marijuana as it saw fit regardless of conflicting state laws permitting its use. See Raich v. Gonzales , 545 U.S. 1 (2005). So while the state statutes provide protection against being prosecuted by the state for possession of marijuana, they generally do not protect employees in the employment context.

Every state law is different. For example, in Colorado, the right to use medical marijuana is enshrined in the state's constitution. Further, Colorado, like some other states, has a “Lawful Off-Duty Statute” that prohibits employers from disciplining employees for off-duty legal conduct. Similarly, the Michigan statute prohibits any business from denying “any right or privilege” to a medical marijuana user. So the analysis in these states may differ from that in other states. But the point remains that possession of marijuana is still illegal in all 50 states, and courts thus far have generally recognized the employer's right to enforce policies that prohibit this illegal conduct.

Second, holdings favorable to employers on this issue have also relied on the employer's right to take steps to maintain a safe workplace. Indeed, under the Occupational Safety and Health Act (and similar state statutes), employers are obligated to provide a workplace free from recognized hazards. This obligation could be read to include a duty to take reasonable steps to ensure that employees are not impaired at work and in a position to harm themselves or others.

For this reason, some federal laws require drug testing of employees. The prohibition of marijuana use for any purpose continues to be a mandate for federal contractors under the Drug-Free Workplace Act of 1988. Additionally, industries regulated by the Department of Defense and Nuclear Regulatory Commission have federally mandated requirements to maintain a drug-free workplace. Likewise, the Department of Transportation has regulations that specifically provide that transportation workers may not use marijuana even in states where its use is legal. As such, for employers covered by these laws, the decision is very clear ' they must not employ anyone who tests positive for illegal drugs, including medical marijuana users.

Strong Incentives

Even aside from those industries and positions where a drug-free workplace is mandated, employers have strong incentives to ensure that no one is coming to work impaired. This is especially true for employees who are operating heaving machinery or saws, driving forklifts, or working in some position where the consequences could quickly turn tragic if they were impaired on the job. Even if an employee assures the employer that he/she will only use medical marijuana away from work, the only way an employer can be certain of that is to maintain its “zero tolerance” policy and refuse to employ anyone who tests positive for illegal drugs.

That does not mean, however, that employers should blindly continue to enforce their “zero tolerance” policies in states where medical marijuana use is permitted under state law. Rather, employers need to decide whether they want to make an exception for medical marijuana users. There could be several reasons for an employer to make an exception to its policy.

First, an employer may simply not want to terminate employees who are strong performers and only use medical marijuana away from work, particularly since they are dealing with a serious medical condition. Of course, it is important for employers to be consistent in their policies. In other words, making an exception to its drug policy for one employee who uses medical marijuana and not for another may leave an employer exposed to a disparate treatment discrimination claim. But the point remains that employers may have a legitimate desire not to terminate a medical marijuana user. This is particularly true if the employee works in a position where the potential danger if he/she came to work impaired is much less than the types of positions discussed above (i.e., receptionist, cashier).

Second, employers must also weigh the risk and cost of getting sued by an employee, under either the ADA or a state statute. Under the ADA, an employer may not discriminate against a “qualified individual with a disability” for obtaining treatment for that disability or for the side effects of that treatment. The ADA expressly provides that an employer may: 1) prohibit the “illegal use of drugs” by all employees at any time; and 2) require that employees not engage in the “illegal use of drugs” in the workplace. The term “illegal use of drugs” means the use of drugs, the possession of which is unlawful under the federal Controlled Substances Act. The term thus includes the use of marijuana for any purpose. For that reason, the ADA should not act as a bar to an employer's discipline of an employee who is using medical marijuana. This should not be interpreted to mean that such lawsuits would not be filed, and employers must still face the burden and expense of defending them.

Third, predicting the results of lawsuits is never an exact science, and it is far from certain that an employee who brings a claim against his/her employer, either for failing to accommodate the employee's disability or under a state statue, will not prevail. If the medical condition for which marijuana has been prescribed is a disability, an employee may be able to show that he or she is a “qualified individual with a disability” under the ADA. Thus, for an employment decision citing current marijuana use, an employee could state a viable claim if he or she could show that: 1) his or her underlying disability was a motivating factor in the employer's decision even if the employer was also motivated by the employee's “illegal use of drugs”; or 2) his or her “illegal use of drugs” was a mere pretext for discrimination on the basis of his underlying disability. In other words, an employee could contend that the failed drug test was not the real reason for the employment decision but, rather, that the employer's real motivation was the employee's disability.

For these reasons, employers who wish to continue to apply their “zero tolerance” policies for all employees, including medical marijuana users, should review their drug-testing policies and make sure they clearly provide that the prohibition on illegal drugs includes marijuana prescribed and used under state medical marijuana laws. This will help protect employers from the claims discussed above, and refute an allegation that the employer's stated reason for the employment decision (the positive drug test) was merely a pretext to mask the employer's discriminatory motive.

Recommendations

Employers can take several steps to minimize the risk of an employee lawsuit for negative employment actions related to the use of medical marijuana while maintaining a drug testing policy.

• Make sure the drug testing policy clearly prohibits the use of any drugs and other controlled substances that are illegal under federal or state law.
• When faced with an employee believed to be under the influence of a drug, document the facts that demonstrate the suspicion. It is far easier to defend a termination based on working under the influence than it is for a positive test.
• If you are in a federally regulated industry such as transportation, make reference to that fact in your policies and in any disciplinary or other negative employment actions you take. Federal law will trump any stronger state protections.

If you are not in a federally regulated industry, consider whether the potential exposure is worth the benefits derived from a zero tolerance drug policy. You may be better off instituting a policy that allows for accommodation of medical marijuana users who have valid prescriptions and who will not be under the influence at work.

Jeffrey S. Shapiro ([email protected]) is a partner with the Labor & Employment Department at McGuireWoods LLP. He advises clients on a wide range of employment-related issues, including wrongful discharge and employment discrimination. Eric B. Martin ([email protected]) is an associate with the firm. He focuses on traditional labor and employment law.