Posted on: 2/15/2013
Holi Hartman, Baker & Hostetler
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Accommodating disabilities in the workplace can be a confusing enough process for employers. But if you have employees in one of 16 states or Washington, D.C., where state and local laws have legalized marijuana for medical purposes, you could be both dazed and confused about what to do.
Courts in some of the states are starting to provide a little guidance, but many employers are struggling with questions about whether to modify workplace policies, such as drug testing. Some sticky legal issues, including federal preemption of state laws, whether medical marijuana patients must be accommodated under state anti-discrimination acts, and whether a patient has a legal off-duty right to use medical marijuana, remain unresolved in many jurisdictions.
The Rise of Medical Marijuana Use
D.C. and sixteen states – Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington – have legalized medical marijuana in the past fifteen or more years. While most laws were voter-approved additions to state statutory schemes, Colorado's voter-approved measure amended the state's constitution to provide the right.
Despite these states' measures, marijuana remains a Schedule 1 controlled substance under the federal Controlled Substances Act. It is still illegal on a federal level, even for medicinal use, and is considered by the FDA to have no proven medical or pharmaceutical benefits.
The use of medical marijuana in these jurisdictions, however, began to skyrocket after 2009 when the U.S. Department of Justice issued a memo to federal prosecutors stating that they should not waste resources on pursuing individuals who use marijuana in compliance with valid state laws. States then began rolling out their medical marijuana user registries and pot providers sprouted like . . . well, like weeds.
Presumably, many of those card-carrying members hold jobs. Employers are now struggling with how – or whether – to accommodate them.
The Dilemma of Medical Marijuana in the Workplace
In general, the medical marijuana laws are designed to provide an alternative therapeutic option to people with chronic or debilitating conditions, such as cancer, HIV/AIDS, glaucoma, multiple sclerosis, major depression, or severe back pain. For these patients, an employer may have already engaged the ill or injured worker in the "interactive process" prescribed by the Americans with Disabilities Act and provided appropriate accommodations not involving medical marijuana use, such as providing leave to seek treatment.
When an employee notifies his employer that he has obtained a medical marijuana recommendation (generally, they are not called "prescriptions" because the drug is not FDA-approved), the employer should consider whether the employee would otherwise be considered disabled under the ADA and explore whether a reasonable accommodation other than marijuana use is available.
Even if an employer would be inclined to allow an employee to use medical marijuana outside the workplace, the employer also needs to keep in mind that it is under a duty imposed by the Occupational Safety and Health Act to provide a safe work place for all its employees. Studies have shown that marijuana-using employees are more prone to accidents, injuries, and absenteeism. If the worker is in a safety-sensitive position, marijuana use is likely not a reasonable option. If the worker must be licensed in accordance with federal law to perform duties such as commercial driving, marijuana use is not an option at all.
But let's face it. Some medical marijuana users may not necessarily have a disability that requires accommodation to perform the essential functions of his job. And many may choose not report their doctors' medicinal marijuana recommendations to their employers. In a common scenario, an employer learns about an employee's status as a medical marijuana user when he or she tests positive on a drug test. Termination or a withdrawal of an offer of employment generally follows, along with a lawsuit.
Courts' Rulings on Medical Marijuana in the Workplace
Only a handful of cases have resulted in decisions that provide some guidance to employers regarding their potential liability in these situations. Almost all have sided with employers who have attempted to keep marijuana out of the workplace.
Employees' attempts to rely upon the medical marijuana acts themselves, the ADA or state anti-discrimination statutes requiring an employer to accommodate a disability, or common law wrongful discharge causes of action have failed. For example:
· In June 2011, the Supreme Court of Washington held that the Washington Medical Use of Marijuana Act does not create a private cause of action for discharge of an employee who uses medical marijuana, either expressly or impliedly. It further found that the act did not create a clear public policy to support a wrongful discharge in violation of public policy claim and noted that the act had been amended by the legislature to state that "Nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment . . . ." See Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, 2011 Wash. LEXIS 393, No. 83768-6 (Wash. June 9, 2011).
· In February 2011, the U.S. District Court for the Western District of Michigan, applying Michigan law, ruled that the Michigan Medical Marihuana Act does not provide a private right of action against employers who terminate medical marijuana users. It also held that the discharged employee could not recover under a wrongful discharge theory. The court noted that the act's provision that an employer need not accommodate the ingestion of marijuana in the workplace or any employee working while under the influence of marijuana "does not operate as a negative inference, prohibiting private employers from disciplining an employee who uses medical marijuana away from the workplace." See Casias v. Wal-Mart Stores, Inc., 2011 U.S. Dist. LEXIS 15244, Case No. 1:10-CV-781 (W.D. Mich. Feb. 11, 2011).
· In 2010, the Oregon Supreme Court held that an employee terminated for medical marijuana use had no claim for relief under Oregon's anti-discrimination statutes, which for disability cases tracked and relied upon federal ADA law. The ADA states that an employer need not accommodate an employee's use of illegal drugs. Although the court found that medical marijuana use is an "authorized use" under state law, the state law was preempted by the Controlled Substances Act, which makes marijuana illegal for medicinal use. See Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159, 2010 Ore. LEXIS 272, CA A130422, SC S056265 (April 14, 2010).
· In 2009, the Supreme Court in Montana determined that an employee terminated for testing positive for marijuana use could not state a claim under either the ADA or Montana's Human Rights Act for an employers' failure to accommodate his medical marijuana use. The Montana Medical Marijuana Act, which states that employers are not required to "accommodate the medical use of marijuana in any workplace," does not provide either an express or implied private right of action against an employer. See Johnson v. Columbia Falls Alum. Co., 213 P.3d 789 (Mont. 2009).
· In 2008, the Supreme Court of California similarly held that medical marijuana patients cannot recover for discrimination under the state's Fair Employment and Housing Act because the California Compassionate Use Act's narrow purpose is to exempt medical users and their primary caregivers from criminal liability under state criminal statutes. The court found that nothing in the text or history of the act suggests that voters intended the measure to address the respective rights and duties of employers and employees. See Ross v. RagingWire Telecomm., Inc., 174 P.3d 200 (Cal. 2008).
Statutory Protections for Employees
Some states, however, have written protections for medical marijuana users directly into their statutes. Here are two exemplary provisions:
· Arizona's statute states that "Unless failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: (1) the person's status as a cardholder [or] (2) a registered qualifying patient's positive test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment." Ariz. Rev. Stat. § 36-2813 (2011).
· Rhode Island's statute states that "No school, employer or landlord may refuse to enroll, employ or lease to or otherwise penalize a person solely for his or her status as a cardholder." R.I. Gen Laws § 21-28.6-4 (2011). However, the chapter shall not permit "[a]ny person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice" or require "[a]n employer to accommodate the medical use of marijuana in any workplace." § 21-28.6-7.
Whether state courts determine that these types of provisions provide a private right of action for employees or require employers to make accommodations remains to be seen. Courts have yet to address the issues.
An issue that may arise in this context is the meaning of "impaired" or "under the influence." Medical marijuana advocates have argued that testing for THC, the intoxicating chemical component of marijuana, in an employee's urine or blood does not necessarily mean that the employee was impaired while on the job. Traces of THC can remain in a person's systems for several weeks.
Courts may turn to criminal or workers' compensation provisions that set standards for the level of metabolites allowed or rely on expert opinions and lay testimony regarding the conduct of the employee in the workplace.
What's an Employer to Do?
Because this area of law is still in its relative infancy, employers and those who advise them should keep their eye on court and legislative developments in their respective states. Employers, for now, appear to have plenty of defenses for maintaining the status quo in their drug testing programs or drug-free workplace policies.
Holli L. Hartman
Baker & Hostetler LLP
Aaron Thompson, a 2011 summer associate in the Denver office of Baker & Hostetler LLP and a law student at the University of Denver Strum College of Law, assisted with the research for this article.