Part I of this two-part series considered some of the more significant banking, business and ethical issues related to the legalization of marijuana. Part II will now highlight issues related to employment in states where marijuana is legal.
Marijuana Use at Work. Under current law, employers do not have to allow the use of marijuana at work. Of the 23 states that have legalized marijuana, 19 of them have passed statutes providing that employers do not need to accommodate marijuana use on their premises during work hours. Four of those 19 statutes go one step further and provide that employers may discipline employees if they are discovered to be under the influence of marijuana even if the employee is using it lawfully under state law. While four other states have been silent on the issue, no state has expressly stated that marijuana use must be permitted on an employer’s premises during work hours. Thus, employers can rest assured that they can continue to maintain drug-free workplaces under present law.
Off-Hours Marijuana Use. Guidance is still emerging about the use of marijuana during non-working hours off company premises that may result in a positive drug test. Courts in Arizona, Delaware and Minnesota have held that a positive drug test is not enough for an employee to be terminated. By contrast, courts in California, Montana, Oregon and Washington have held that employers can have a zero tolerance policy, meaning they can terminate an employee simply based on positive drug test results. Most states have not had the opportunity for judicial interpretation of this issue.
A groundbreaking case out of the Colorado Supreme Court, Coats vs. Dish Network, held this past summer that a quadriplegic employee with a medical marijuana prescription was not wrongfully terminated by his employer. The employee in Coats used marijuana outside of work and was never under the influence at work, but tested positive for THC (a component of medical marijuana) on an employer drug test. The employee claimed that he was terminated in violation of Colorado’s “lawful activities statute” which generally provides that discharging an employee based on the employee’s “lawful” outside-of-work activities is unfair and discriminatory labor practice. The Colorado Supreme Court affirmed the decision of the Court of Appeals and held that an activity such as medical marijuana use that is unlawful under federal law is not a “lawful” activity under the Colorado lawful activities statute.
The decision in Coats sends a strong message that employers need not tolerate marijuana (or employees who use marijuana) inside or outside the workplace. Post-Coats, employees using prescribed medical marijuana must understand that, because marijuana use is still a federal offense, they may jeopardize their employment by choosing to use the drug, even at home during non-working hours.
Americans with Disabilities Act. Another critical issue for employers is whether the use of medical marijuana by employees is subject to the Americans with Disabilities Act (ADA). Title I of the ADA protects qualified individuals with disabilities from employment discrimination. In order to be protected by the ADA, an individual with a disability must be qualified to perform the essential functions of the job with or without accommodation. Thus, the ADA does not interfere with an employer’s ability to hire the best applicant for the position; rather, it prohibits an employer from discriminating against a qualified applicant or employee as a result of his or her disability.
Under the ADA, employers are generally required to provide a reasonable accommodation to employees with disabilities. One exception to this requirement exists for situations in which providing such accommodation would impose undue hardship on the operation of an employer’s business by requiring significant difficulty or expense. Because in most situations the use of marijuana is to address a medical problem, the issue for employers is whether that underlying medical problem constitutes a disability that employers must accommodate under the ADA. Some states, such as New York and Nevada, have already expressly provided that employers need to accommodate such disabilities. Employers can expect to gain clarity on this issue as state and federal guidance continues to emerge.
Takeaways for Employers. As laws continue to change and the trend is to allow marijuana for medicinal or recreational purposes under state law, employers will need to continuously monitor and update policies. Employers must also remain aware of and in compliance with any notice requirements for employee drug testing. Despite the changing legal landscape around marijuana, employers can have faith in the fact that, to date, courts have generally been very empathetic to employers who want to protect the safety and drug-free nature of the workplace.
Do you provide counsel to clients in the marijuana business? Have you represented a client in a workplace dispute involving the use of marijuana? Please share your experience, concerns and best practices in our comments section.
