Up In Smoke: An Employers Guide to Medical Marijuana Laws

Currently, 23 states have enacted laws to legalize medical marijuana. Medical marijuana laws are challenging for all employers, but particularly multistate employers, as employers must reconcile federal and varying state laws into their employment policies and handbooks. Moreover, it seems every month court decisions are being announced which impact the marijuana laws in a particular state, further leading to uncertainty. A problem with these new laws is that a majority of them have been geared towards removing criminal penalties for users, and do not fully address workplace issues posed by medical marijuana.

States Currently Adopting New Laws

Minnesota already has a medical marijuana statute in place. As of November 2015, medical marijuana dispensaries in Illinois began treating patients under their new marijuana laws. Most recently, Pennsylvania enacted a bill legalizing marijuana use in pill, oil, vapor, liquid, or topical form. The Illinois medical marijuana law is one of the most restrictive in the nation, but the fact remains you may have one or more employees protected under a state medical marijuana law.

Testing and Hiring Issues

Besides unanswered legal issues and ever changing laws, marijuana is not like other drugs (I should clarify it is different from other drugs from a testing perspective). An individual could test “positive” for marijuana a month or more after usage, and a positive test does not mean the person was under the influence of marijuana at the time of the positive test. Urine tests measure not THC itself, but a non-psychoactive byproduct of THC created in the liver than can linger for weeks. This has created problems for many employers in the Midwest who drug test as part of a pre-employment process; the most prevalent problem being they cannot find enough “clean” qualified applicants to fill the open positions.

Employer/Employee Considerations

Employers, at a minimum, should understand the following:

The state statutes on marijuana, especially those that are medically based, often prohibit employers from discriminating against or penalizing a person based solely on his or her status as a patient qualified and register to receive medical marijuana. Employers should not fire an employee or refuse to hire an applicant solely because of their use of medical marijuana for a medical condition or due to their status as a registered user.

However, many states do have a provision in place which states something to this effect: “Employers are not required to accommodate the use of medical marijuana at work and employers retain the ability to discipline employees for using marijuana at work.”

The Illinois statues does not have specific language that employers must offer the use of medical marijuana as a reasonable accommodation under the Americans with Disabilities Act (ADA). While the physical situation that made the person eligible for medical marijuana may be a disability under the ADA, an employer in Illinois can decide whether to allow an employee to use medical marijuana as a reasonable accommodation under the ADA. That being said, I cannot think of one logical or legitimate reason to ever allow someone to use medical marijuana while on the job. There are risks if an employee is under the influence and hurts him/herself. Worse yet, there are enormous liability implications if an employee is under the influence and is at fault for an accident that hurts other employees or the general public.

While the new Illinois law states an employer may make a case by case determination, it also specifically states that employers may still enforce a “policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a non-discriminatory manner.”

Most states also include an exception to their nondiscrimination provision by permitting employers to discriminate against or penalize registered users if failing to do so would put the employer in violation of federal law or cause it to lose a monetary or licensing related benefit under the federal law.

Only three states – Arizona, Delaware, and Minnesota – explicitly protect employees who test positive for marijuana use and have medical authorization. These provisions place employers in a difficult position by requiring them to look past a positive drug test unless they can show that an employee is impaired due to marijuana use during work hours. Since urine-based drug tests do not actually measure impairment it is not clear how employers in those states are expected to meet this standard.

Medical Marijuana and “Reasonable Accommodations”

The laws here will continue to evolve as states deal with reasonable accommodations. In some cases, employees have tried to argue that their medical marijuana use is protected under the ADA because the ADA states that employers must accommodate disabled employees absent a showing of hardship by the employer. Reasonable accommodation issues are always subject to interpretation because they are fact-sensitive and there are no specific guidelines. Reasonable accommodation discussions require the employer and employee to engage in an interactive process to determine a suitable accommodation. It does not take a genius to figure out that employees asserts that a suitable accommodation is to allow them to light up. However, to date, employers can correctly assert that no state or federal courts have required employers to accommodate medical marijuana use. A counter argument does exist since no court has ruled that that off-duty marijuana use can never be a reasonable accommodation. Until a court decides this issue on point, employers are safe to continue with the current policy. A decision should come soon since there are several recent lawsuits filed by employees claiming they should be able to use medical marijuana on the job as an accommodation. These cases illustrate the ongoing tension between the rights of disabled employees to treat their medical conditions versus the rights of employers to ensure a safe workplace for employees and customers. Under the right circumstances, a court could rule that an employer has a duty to accommodate a disabled employee’s off-duty medical marijuana use.

Key Takeaways

Employers in safety-sensitive industries should tighten the language of their zero-tolerance policies or consider adopting the same. Review personnel polices involving drug testing and protocols for responding to employee drug use. Also, employers should develop a consistent and transparent plan for responding to drug test results. In most states, employers with “zero tolerance” drug use policies can refuse to hire, or terminate, employees who fail a drug test for marijuana with or without medical authorization. And marijuana use or possession in the workplace is clear grounds for termination. In addition, in most states, employers with federal contracts are under no obligation to accommodate medical use, which remains illegal under federal law.