The haze has not lifted: Medical marijuana continues to confound employers

So far 20 states and the District of Columbia have enacted laws permitting and regulating the use of marijuana for medicinal purposes. Colorado and Washington have gone further and legalized the recreational use of marijuana. Moreover, Americans’ tolerance for the legalization of marijuana is increasing. An October 2013 Gallup poll showed that 58% of Americans favor legalizing marijuana.



What does this trend mean for retailers, especially those operating in multiple states? The answer is complex, as the law is evolving.



State laws vary widely. Most do not provide marijuana users any employment protections. Indeed, many explicitly state that employers are not required to accommodate medical marijuana in the workplace and permit employers to discipline employees who use medical marijuana in the workplace and/or who are working under the influence of marijuana. Some states expressly provide that employers can take adverse action against applicants or employees for positive drug tests or refusal to take a drug test.



There are states that provide protection for applicants and employees. For instance, some states, including Connecticut, Maine, Rhode Island and Illinois, prohibit employers from discriminating against people merely because they hold a medical marijuana registration card. Delaware and Arizona provide additional protection, prohibiting employers from disciplining employees solely for testing positive for marijuana.



Federal law adds another layer of complexity for retailers. Marijuana is classified as a Schedule I drug under the Controlled Substances Act, making it illegal for individuals to use, distribute or possess. The Controlled Substances Act does not make an exception when the drug is used for medicinal purposes.



Efforts are being made to reclassify marijuana, however. Earlier this year, for instance, a bill known as the States’ Medical Marijuana Patient Protection Act was introduced in the U.S. House of Representatives. This bill seeks to reclassify marijuana under the Controlled Substances Act and permit its use for medicinal purposes in accordance with state law.



Disability laws also come into play for most employers. The Americans with Disabilities Act (ADA) is a federal law that prohibits disability discrimination and requires covered employers to provide reasonable accommodations for disabled individuals. This law, however, does not protect current users of illegal drugs as defined under federal law. Accordingly, medical marijuana users generally have been unable to rely on this law for protection. On the other hand, some state anti-discrimination laws may be interpreted to provide protections to disabled individuals using marijuana for medicinal purposes in accordance with state law.



Certain employers may also be subject to other federal laws and regulations that do not provide exemptions for medical marijuana in the workplace. For instance, the U.S. Department of Transportation prohibits marijuana use for any purpose in the jobs it regulates. Likewise, federal contractors and grantees covered by the Drug-Free Workplace Act cannot permit the use, possession or distribution of medical marijuana in the workplace.



Meanwhile, individuals and groups are going to court, challenging employers’ rights to take adverse actions against employees using medical marijuana. To date, most of the court cases have focused on workers fired for testing positive for marijuana following an employer-required drug test. These employees have alleged that their firings are unlawful under various theories, including wrongful discharge, state medical marijuana laws, federal and/or state anti-discrimination statutes, invasion of privacy and/or state off-duty lawful activities statutes.



So far, the courts have generally been siding with employers. For instance, the Sixth Circuit Court of Appeals upheld Walmart’s firing of an employee in Michigan after he tested positive for marijuana following a work-related injury. The employee had been using medical marijuana to alleviate his suffering from sinus cancer and a brain tumor, had a state registration card for this purpose and never reported to work under the influence or used medical marijuana in the workplace. Similarly, the Washington Supreme Court held that Teletech Customer Care Management’s termination of an employee following a failed drug test was lawful because the employer had no duty to accommodate a medical marijuana user, even when the worker did not hold a safety-sensitive position.



Earlier this year, the Colorado Court of Appeals addressed Dish Network’s firing of a quadriplegic employee after he tested positive for marijuana as the result of a drug test, even though he used marijuana off-duty and never worked under the influence. The employee claimed that Dish’s actions violated the Colorado’s lawful off-duty activities statute. The court determined that for an activity to be “lawful” under the state statute, the activity has to be lawful under both state and federal law. Since marijuana is not lawful under federal law, the court denied the employee’s claim.



Despite these and other employer victories, the fog remains as more challenges on medical marijuana use are on the horizon. Therefore, retailers should exercise caution when it comes to applicant and employee use of medical marijuana. There is still uncertainty as to where to draw the line between the right of individuals to get effective medical treatment and be productive employees, with an employer’s right to ensure workplace safety and comply with all applicable federal and state laws. Moreover, if marijuana gets reclassified under federal law, at least to allow its use for medicinal purposes, employees may see increased success when challenging employers taking adverse actions based on off-duty marijuana use.



For now, retailers may want to consult with counsel about clarifying policies to prohibit the use of any illegal drugs or controlled substances under federal, state or local law. Retailers also may want to consider explicitly stating in their policies that they prohibit any detectable level of a controlled substance under federal, state or local law to cover off-duty use. Union employers must also be mindful that drug testing is a mandatory subject of bargaining, and therefore may have a duty to negotiate before making any policy changes. Finally, retailers should train their managers and supervisors on their company’s policies addressing medical marijuana.

Debra S. Friedman is a partner in the Labor & Employment Department at Cozen O’Connor in Philadelphia. She focuses her counseling and litigation practice on compliance with federal and state employment laws and regulations, noncompetition disputes, business torts, affirmative action issues and defense of discrimination claims.