Richard D. Alaniz

For employers with operations in the 14 states that have legalized marijuana for medical purposes, it is a difficult task to juggle the need for a drug-free workplace environment and the rights of employees who have prescriptions to legally use marijuana. How does legalized use of marijuana impact your random drug testing policies? Can employees with a legal prescription to use marijuana claim they have a disability and therefore are entitled to a workplace accommodation?

Unfortunately for employers and employees, there are few hard and fast rules when it comes to legal medical marijuana usage in the workplace. The federal government steadfastly considers all forms of marijuana use to be illegal, and states have taken their own, often very different, approaches to employers’ and employees’ rights.

Even if all your operations are confined to states where doctors cannot prescribe legal marijuana, that could change. According to the Marijuana Policy Project, 27 states considered medical marijuana legislation during the 2007 or 2008 legislative sessions.

Now is a good time to review your organization’s drug testing policies to see if they comply with relevant laws. Once you have created or updated those policies, you need to educate your employees so medical marijuana use by employees is handled legally and consistently throughout your company.

CONFLICTING MESSAGES AND LAWS

Legalized medical marijuana use can wreak havoc on employers’ drug policies and create significant conflicts for employers.

Many employers have policies in place that include a zero-tolerance approach to drug use. Many also conduct drug testing before hiring and random drug testing for employees - tests that users of medical marijuana will fail.

The federal government still views pot as an illegal substance. Last October, the U.S. Department of Justice issued a memo regarding the use of medical marijuana. According to the memo, individual, legal pot smokers should not be a high priority for prosecution, but the DOJ will still pursue those who may be running large, profitable marijuana operations. “The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States,” according to the memo. “Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels.”

Under the Drug-Free Workplace Act of 1988, companies that receive federal contracts must prohibit the use of marijuana in the workplace. And the U.S. Department of Transportation has issued guidelines that bar employees in certain “safety-sensitive transportation” jobs, such as pilots, truck drivers, and subway operators, from using medical marijuana.

Less specifically, all employers are required to provide a “safe and healthful” work environment under the Occupational Safety and Health Act of 1970. If employees are smoking pot, even off-duty, safety issues could arise.

Employers also have to consider questions of liability. If an employee legally using pot hurts someone while on the job, the company could quickly find itself embroiled in a lawsuit.

THE STATES' DIFFERING APPROACHES

In the jurisdictions that have legalized medical marijuana - Alaska, California, Colorado, the District of Columbia, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington - patients are protected from arrest if they have a physician’s permission to use the drug and have completed any necessary forms. Beyond protecting users from criminal prosecution, the approaches to employees’ possession and use as well as employers’ rights and duties vary dramatically. Many of these laws are new or untested in court, and there is often very little specific guidance.

•Grounds for Termination

In California and Oregon, employers can fire workers who test positive for marijuana, even if those employees are using it with a doctor’s prescription.

In 2008, the Supreme Court of California ruled against an employee who sued his employer for firing him over his use of medical marijuana. In that case, Ross v. RagingWire, the state’s highest court found that not only is employer drug testing legal, but it is not discrimination to fire an employee for using medical marijuana. The Court held that employers do not need to accommodate the use of medical marijuana, even when users only ingest pot away from the job.

In April of this year, the Oregon Supreme Court ruled in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, that employers in that state do not have to accommodate employees’ use of medical marijuana because federal law takes precedence over such state law.

•Legal to Smoke Away from the Job

Some states only regulate the use of, or impairment by, marijuana on the job and are quiet on the issue of drug testing. In Vermont, for example, legal marijuana users can still be arrested or prosecuted for being under the influence of marijuana “in a workplace or place of employment.” Similarly, under New Mexico’s law it is “illegal to possess or use medical cannabis…in the workplace of the patient or primary caregiver….”

In these states, employers may be able to fire employees who fail drug tests on the job, even if employees only use marijuana at home.

•Protection for Pot Smokers

In several states, including Maine and Rhode Island, workers who use medical marijuana are specifically protected from firing based on their use of legally prescribed pot. According to the Rhode Island Medical Marijuana Act, “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 card holder [of medical marijuana].”

•The Question Marks

Questions remain in other states, including Washington, where the Washington Supreme Court has agreed to hear a case, Roe v. Teletech, involving a worker with a prescription for medical marijuana who was fired for failing a pre-employment drug test.

In Michigan, the law can also be confusing for employers and employees. According to the law, patients with a legal prescription can’t be “denied any right or privilege” by a business. However, according to news reports, Wal-Mart Stores fired a Michigan employee who tested positive for marijuana, even though the employee had a prescription to use the drug. Despite the firing, Wal-Mart was quoted as being “sympathetic” to the employee, a one-time “employee of the year” at his store who is suffering from cancer and a brain tumor.

WHAT SHOULD EMPLOYERS DO?

Considering the complications and variables involved, employers may want to just ignore the entire issue, particularly if they operate in states where marijuana use is still illegal. This is a very shortsighted approach. Instead, this is an opportunity to reconsider and review your drug testing policies. You should not approach the job alone. It’s important to involve your human resources staff and legal counsel. And make sure your legal counsel has expertise on the specific state laws, since there are still many gray areas.

•Re-evaluate your current policies.

Your policies should be clear about the use of non-legal drugs - you should specifically outline that your organization takes a zero-tolerance approach to anyone who possesses or uses drugs or alcohol at work, or who shows up under the influence of any type of substance. The safety of your workers, customers, and the general public should be of utmost importance.

If you operate in a state where medical marijuana use is legal, you should specifically address the issue, even if your policy is to ban employee use of it in the states where you have that right.

•Educate and explain.

Training and education about your organization’s drug policy should be regular and ongoing. If questions arise, employees and supervisors should know who to direct questions to, so that any issues are dealt with quickly.

Job applicants should be made aware of your policy, and in states where medical marijuana is legal, there should be processes in place for applicants who have the necessary forms and permissions to use marijuana. States vary in how they identify medical marijuana patients, so be sure those who are hiring understand what forms to look for.

•Monitor legislative and legal developments closely.

Laws and court rulings change all the time, and it is important to understand how those changes can affect your company and your employees. Staying on top of any changes will make it easier to proactively respond.

The issue of medical marijuana is a complicated one, and it will remain so as long as state laws differ from each other and clash with federal laws. By carefully considering and implementing policies, your company has the best chance of staying in compliance, no matter what the law is.

Publication date:07/19/2010