Medical Marijuana Is Coming to Your Workplace - Can You Stop It?

Thirty six states, including Washington, DC, have now legalized some form of medical marijuana for use in their state.  Thirteen of those states have only legalized the use of low THC/high cannabidiol (CBD) products with a prescription.  Under federal law, and federal drug testing regulations, marijuana remains a Schedule I substance under the Controlled Substances Act.  However, in August of 2013, the Department of Justice released guidance regarding marijuana enforcement on the state level.  

In that guidance, the DOJ stated it will continue its prior enforcement guidelines (listed in the memorandum) which focused on preventing inter-state drug trafficking, use of marijuana in the drug trade, cultivation on federal or public lands, drugged driving and distribution to minors.  Provided that a state which has legalized marijuana (for medical use or otherwise) has a "strong and effective regulatory and enforcement system[]" which addresses the threat of marijuana to public safety, public health and other law enforcement interests - the federal government will leave enforcement of marijuana related statutes to local law enforcement.

As a growing number of states legalize the use of marijuana in various forms (Nebraska appears to be next), employers will increasingly face the issue of employees who test positive for marijuana in the workplace, as employees mistakenly believe that state law, the ADA or their union will protect them.  And the issues become even more complex for employers with multi-state operations, as the answer as to whether the employee has any protections will be different in every state.

The Americans with Disabilities Act

The ADA is the least complex issue of the three main ones, for now.  Federal courts have held that because marijuana remains illegal under federal law, its use is not protected by the Americans with Disabilities Act.  The ADA provides that "the term `individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when the [employer] acts on the basis of such use." 42 U.S.C. § 12210(a). Therefore, because marijuana remains illegal under the Controlled Substances Act, medical marijuana use constitutes "illegal use of drugs" under § 12210 and is not protected.  Other courts have held that an employer may lawfully discipline employees for marijuana use.  However, there still exists the possibility that other federal Circuit courts may rule differently in the future, or that state anti-discrimination laws could define the illegal use of drugs differently than federal law has defined them.  This would mean that an employer's actions could be legal under federal law, but illegal under the state law.

So Many State Laws

State laws have created a minefield for employers on the issues of medical and recreational use of marijuana.  Of the twenty five states which have (currently) legalized some form of medical marijuana, less than half have addressed employment related issues in any way.  Arizona, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Minnesota, Nevada, New Hampshire, New York and Rhode Island all have laws which either prohibit discrimination by employers based on the fact that the employee has a medical marijuana registration card, prohibit adverse action based upon a positive test (without evidence of on-duty impairment) or require accommodation for employees who have been prescribed medical marijuana.  It is impossible to address the effects of each and every different state statute, but you can find a list of them here, with links to the text of each law.

Complicating things further, many states have 'legal activities' or 'legal products' statutes, which may provide for additional protection for users of medical marijuana or even recreational marijuana.  In short, these laws can protect employees from discipline for using products that are legal under state law, and can result in back pay and reinstatement.

Union Issues

The terms of your collective bargaining agreement can add an additional layer of complication to these issues.  Should a unionized employee test positive (or appear impaired) and be under the influence of marijuana at work, the employer will have to defend both its right to prohibit the use of marijuana in the workplace, and also their implementation of that prohibition.  Any irregularities or inconsistencies in how employees are notified of the policies relating to marijuana, or in how the employer implemented or enforced those policies could result in an arbitrator reinstating an employee who was impaired on the job site.  It is not uncommon for miscommunications with front line supervisors over these types of policies to create opportunities for unions to convince an arbitrator to overturn discipline and bring a terminated employee back to work.

Conclusion

Employers should prepare ahead of time (or as soon as possible) to give themselves the best chance to have a successful, enforceable policy.  Specifically, they should familiarize themselves with:

  • the medical marijuana laws in their state(s);
  •  the effects of any sections addressing employment or disabilities;
  • any legal products/activities laws in their state.  

If (or when) some form of marijuana becomes legal in your state, you should be upfront with employees about what you expect from them.  Employees in positions affecting public safety (drivers, riggers or people working ten feet or more above the ground, machinery operators, etc.) should be informed that if they are prescribed medical marijuana, they need to contact HR to discuss (just as if they were prescribed oxycontin or any other drug which affects your ability to operate machinery).  You need to inform all employees that even if recreational marijuana is legal under state law, your company follows federal law in this matter (if there are no conflicting state laws) and you will continue to do drug and alcohol testing where appropriate.  Your HR department should be familiar with its options when an employee requests a reasonable accommodation for medical marijuana, especially where the prescription appears fraudulent on not based upon a reputable medical opinion.

Employers who wait for problems to arise, before making preparations, may encounter additional problems.  These problems can include supervisors who manage these issues inconsistently, accidents resulting from the use of medical marijuana as well as discipline that is illegal under state law.  And these types of issues benefit no one, except for possibly the attorneys on either side.  Personally, I would rather help you craft a reasonable and enforceable policy, than represent you before the State DOL or union arbitrator.

How to turn Employees into Supervisors - One Example

The difference between employees and supervisors is a crucial one for employers who have unionized employees or may have them in the future.  Supervisors can be required to represent or carry out an employer's goals, employees may be unwilling or prohibited from doing so.  For example, during a union organizing campaign, supervisors can be required to participate and support the employer's education campaign, and employees may not be required to do so.  Further, supervisors generally do not belong to unions, and do not negotiate as a group over wages, benefits and working conditions.  

These distinctions can be crucial where you have employees who perform some supervisory functions, but also work alongside unionized employees.  It is especially complex where you have a situation where the duties of lead employees who belong the union have changed over time to include discipline, scheduling, hiring and firing and similar duties.  In that case, these lead employees may be pressured or required by their union not to participate in some of their duties. For example, some unions prohibit union members from testifying in an arbitration against brother or sister union members.  Other unions may not have an official policy, but you may find that some of your 'management' witnesses suddenly have a very shaky recollection of why they imposed the discipline that they imposed as a supervisor.

The typical process is to file a 'UC' or 'Unit Clarification' petition with the NLRB.  This can be a long and involved process, depending on what region of the NLRB your business is located and how vigorously the union opposes the petition.  In other cases, you can negotiate changes to the bargaining unit successfully with the union.

A third option requires the sale or contracting out of the work done by the bargaining unit.  In that case, there may be a window of opportunity for the new employer to make substantial changes to the way the work is done by the employees.

In an advice memorandum issued by the NLRB's Office of the General Counsel, the OGC advised the regional office to dismiss the charge filed by the Teamsters, who represented the RNs affected by the changes.  This decision, although not binding, resulted from the fact that the new (or 'successor') employer correctly followed the procedures created by the NLRB v. Burns International Security Services, Inc. and Spruce Up Corporation cases.

Specifically, Blue Hills Health and Rehabilitation, LLC. announced that it had been awarded the contract to operate the facility, that it would recognize SEIU Local 1199 as the representative of the LNs and CNAs (Certified Nursing Assistants), and that it was changing the duties of the RNs represented by the Teamster, consistent with how Blue Hills managed other facilities.  RNs would now have the ability to independently issue discipline and prepare employee appraisals that would affect pay increases and bonuses.

The Teamsters objected to these changes after Blue Hills took the position that it would not bargain with the union regarding the RNs, as they were now supervisory employees.  However, the Teamsters did not object to the changes Blue Hills had announced several months ago.  Because Blue Hills had properly announced their changes to the initial terms and conditions of employment of the RNs when they were awarded the contract, they were not 'perfectly clear' successors under the Spruce Up Corporation case.

Navigating the balancing test created by the Burns and Spruce Up cases is difficult even in perfect circumstances.  The most crucial factors in this case were:

  • There was no anti-union animus against the Teamsters by Blue Hills (or the original employer) as the changes were based on the way Blue Hills managed other facilities.
  • Blue Hills recognized SEIU as representing the LNs and CNAs without complaint.
  • Blue Hills recognized the opportunity created by the new contract prior to taking over the facility, so they were able to announce the new responsibilities for the RNs from Day 1.
  • Blue Hills maintained a consistent position throughout the entire process.
  • The RNs were in fact given the authority to issue discipline and assess employees, and that award of authority was not a subterfuge to get rid of the Teamsters.

The supervisory status of Registered Nurses under Section 2(11) of the NLRA is the focus point of much of the litigation about whether someone is a supervisor or an employee.  However, these issues affect every employer who has lead employees, foremen or any other kind of quasi-supervisor.  

 

If you have any questions, please do not hesitate to contact me at tor@tor.org.  This post is a publication of Christensen Law, LLC.  More details can be found at www.tor.org