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.
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.
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.