By Lori Bowman, Ogletree Deakins
Introduction
Twenty-three states and the District of Columbia have legalized medical marijuana, with Colorado and Washington protecting the use of recreational marijuana as well. Complicating the enactment of these laws for employers is the potential conflicting statutory obligations under the Americans With Disabilities Act and state disability anti-discrimination statutes. These conflicting duties raise numerous questions for the employer, some of which will be addressed below, including whether the employer must reasonably accommodate an employee's on-site or off-site use of marijuana, whether the employer may enforce a"zero tolerance" drug free policy, and how to respond to these laws in light of federal mandates on the use of marijuana.
1. Generally, employers are not required to accommodate employees' use of medical marijuana in those states where its use is legal.
Under most state medical marijuana laws, employers are not required to accommodate employees' use of medical marijuana. Moreover, a line of cases, beginning with the Washington Supreme Court's decision in Roe v. Teletech Customer Care Management, LLC and the California Supreme Court's decision in Ross v. Raging Wire Telecomm, Inc., has found that no accommodation clauses in a state's medical marijuana act - which provide that an employer is not required to accommodate the use of medical marijuana in any workplace - permits the employer to uniformly apply zero tolerance policies and terminate an employee for even off-site, after-work use of medical marijuana. 171 Wash. 2d 736 (2011);42 Cal. 4th 920 (2008). However, in some states, such as Arizona, Connecticut, Delaware and Rhode Island, medical marijuana users are protected by statutes prohibiting employers from discriminating against employees for their use of medical marijuana. Thus, in those states, employers are advised to limit adverse actions against an employee who tests positive for medical marijuana unless the employee was visually impaired on premises or during working hours or the employer would lose a federal grant or other benefit under federal law.
2. Employers are not required to accommodate employees' use of recreational marijuana where it is legal.
Employers are not required to accommodate employees' use of recreational marijuana. In Colorado, the law specifically states that employers are not required to accommodate such use. In Washington,although the law does not specifically address workplace accommodation, in all likelihood, because employers do not have to accommodate medical marijuana use, they will not have to accommodate recreational use.
3. Employers not required to permit employee use of medical marijuana under the Americans With Disabilities Act (ADA).
The ADA does not protect the use of illegal drugs as defined by federal law, and marijuana remains an illegal Schedule I drug under the federal controlled Substances Act. Employers may, however, be required to engage in the interactive process required by the ADA if the employer has reason to believe that an employee is disabled. Many medical conditions that qualify employees to use medical marijuana under state laws also qualify as disabilities under the ADA. Therefore, an employer may be required further to determine whether it can provide another accommodation (other than using marijuana) to permit an employee to perform the essential functions of his or her job.
4. As noted above, an employer's right to terminate an employee who tests positive for use of medical or recreational marijuana depends on the state.
Marijuana use is illegal under federal law. See Federal controlled Substances Act, 21 U.S.C. §§ 801, 35seq.; Gonzales v. Raich, 545 U.S. 1, 29 (2005) (finding that the use of marijuana even for medical purposes is properly illegal under federal law). Therefore, under federal law, an employer may terminate an employee who tests positive for marijuana. The U.S. Attorney General in August, 2013 urged U.S.Attorneys not to prosecute marijuana users who are compliant with state medical and recreational marijuana laws. However, a few U.S. Attorneys continued to engage in such prosecutions. In May 2014,the House of Representatives passed an amendment to an appropriation bill that would disallow the Department of Justice of funds for enforcing federal law prohibiting the use of marijuana in states where the use is legal.
Whether the employer may lawfully terminate the employee under state law depends on the state where the employee works. For example, in Arizona and Delaware, state laws prohibit employers from discriminating against registered qualifying patients who test positive for marijuana. In Connecticut and Rhode Island, state laws prohibit employers from discriminating against medical marijuana cardholders, though the statutes do not specifically address drug tests. In other states, without such employee protections, an employer most likely may terminate an employee for failing a drug test. Regardless, in all states, employers are not required to permit the use, possession, or impairment of employees during working hours.
5. Whether an employer may refuse to hire an applicant who tests positive for marijuana, even if he or she has a medical marijuana card, depends on the state.
Again, it depends on where the applicant is located. In Arizona, Connecticut, Delaware and RhodeIsland, employers may not be able to refuse to hire such an applicant. In other states, employers likely may refuse to hire an applicant who tests positive for marijuana even if the employee has a medical marijuana card.
6. Courts have not yet upheld the protection of off-duty medical or recreational use of marijuana where lawful.
Courts have not yet held that lawful, off-duty conduct statutes protect employees who use marijuana when they are not at work. There are current cases pending in Colorado and other states worth watching in this area. See Coats v. Dish Networks, 303 P.3d 147 (2013), cert. granted, 2014 WL 279960 (January 27,2014) (appellate court upheld termination of employee, a quadriplegic with a medical marijuana license from the state of Colorado, for testing positive for marijuana where there was no evidence of use at work or any impairment).
7. Employers do not have to allow employees to use marijuana on their property.
Employers are not required to provide an area for marijuana users to smoke while on the employer's property. Even in the most lenient states (e.g., Arizona, Connecticut, Delaware, and Rhode Island), employers are not required to accommodate marijuana use or possession during working hours or on the employer's property.
8. State marijuana laws do not appear to prevent employers from drug testing employees in safety sensitive jobs, and they do not prevent testing of employees in positions that are covered by Department of Transportation regulations.
In most states, employers are not prevented from drug testing employees in safety sensitive jobs (or any jobs at all) for marijuana. In Arizona, Connecticut, Delaware and Rhode Island, discrimination against an employee for being a cardholder or failing a drug test (Arizona and Delaware) is prohibited. The statutes do not appear to address the situation where an employee holds a safety-sensitive job.
However, if a job is covered by federal Department of Transportation regulations, employers can and are required to test for marijuana. As noted above, marijuana remains an illegal Schedule I drug under the federal Controlled Substances Act and should be treated accordingly. Employers also should remember that the Occupational Safety and Health Act's General Duty Clause requires employers to provide a safe workplace for their employees. This could mean that if an employer has knowledge of employee marijuana use that it arguably may not be able to claim to provide a safe workplace.
9. Employers should not ask employees if they have a medical marijuana card unless in one of the few states that prevents discrimination.
There is no benefit to employers in asking for this information, unless an employee in Arizona or Delaware (and possibly in Connecticut or Rhode Island) fails a drug test. In that case, the employer is prevented from discriminating against the employee, but the employer may take steps to verify that the employee is a qualified patient. If the employee is not a qualified patient, he or she is not protected by state law.
10. Employers should review state laws in which they operate and review and revise their policies.
Employers should review state laws on medical and recreational marijuana use and ensure their policies are consistent with those laws. Employers also should continue to comply with federal laws and regulations on drug testing. Employers' policies on drug use and testing should set forth expectations such as prohibiting use and/or possession at work, prohibiting controlled substances that interfere with performance or pose a danger to the employee or others, prohibiting impairment, specifically spelling out the policy on medical and recreational marijuana, and making clear the circumstances in which an employee will be terminated.
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