Four states (Washington, Oregon, Colorado, and Alaska) and the District of Columbia have legalized marijuana for recreational use. Twenty-one other states (Maine, New Hampshire, Vermont, Connecticut, Rhode Island, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Maryland, Michigan, Illinois, Louisiana, Hawaii, Minnesota, Montana, New Mexico, Arizona, Nevada, and California) have legalized medical marijuana. Other states, including Missouri, are making efforts to follow the trend, and many believe that even the federal government will legalize marijuana in the near future. A major indicator, as explained by the Pew Research Center, is that younger generations highly support marijuana legalization, with 68 percent of Millenials supporting recreational legalization and 81 percent of all Americans supporting medical marijuana. Given this landscape, it would be a poor practice for employers to simply turn a blind eye and rely on their zero-tolerance drug policies with respect to marijuana. Employers need to continuously revise their policies to reflect, among other things, the legalization of this drug.
One rather specific way that employers could end up being stuck in a legal predicament relates to medical marijuana and employees with disabilities under the Americans with Disabilities Act of 1990 (ADA). The ADA is a civil rights law that prohibits discrimination against individuals with disabilities, including in employment. If an employee is prescribed medical marijuana, it could certainly be argued that the employee has a disability, as defined by the ADA, and thus that the employer must provide the employee with accommodations. In fact, certified medical marijuana patients are deemed to have a disability under the New York Human Rights Law, and thus are protected from discrimination in employment due to their marijuana use.
Although the intersection of medical marijuana and the ADA seems like it may pose an immediate problem for employers, disabled employees have proven largely unsuccessful in bringing claims based on their use of medical marijuana. For example, in James v. City of Costa Mesa, disabled medical marijuana patients sued the City of Costa Mesa, California claiming that because medical marijuana was legal under California law and the federal government had permitted medical marijuana in Washington, D.C., the use of medical marijuana was protected by the ADA and, thus, that Costa Mesa could not shut down local dispensaries. The 9th Circuit disagreed, however, holding that medical marijuana was categorically an “illegal use of drugs” and excluded from any ADA protections.
Colorado, the state that the media would likely make you believe is a leader in the marijuana movement, made a similar finding in Coats v. Dish Network, LLC. In Coats, a quadriplegic medical marijuana user was terminated from his job after a random drug test. He claimed that doing so violated the state’s “lawful activity statute,” which prohibited employers from discharging employees for “lawful” out-of-work activities. However, in view of the federal Controlled Substances Act, the Colorado Supreme Court determined that medical marijuana was not a “lawful activity” and declined to construe the statute to mean “lawful” under state law.
While the case law suggests that employers can breathe a sigh of relief, there are a few important things that need to be kept in mind. First and foremost is that although courts have sided with employers thus far, the litigation is still arising. The occurrence of the litigation translates to legal costs and headaches for employers. In addition, because this is a new and evolving area of employment law, cases are prime to go to trial – meaning higher legal costs for employers. Secondly, employers should remember that this legal landscape is always changing. Just a few short years ago, marijuana in the workplace was largely a non-issue. Changes in state laws often have a domino effect, both on other states and federal law. The potential for successful employee litigation will rise dramatically if marijuana is removed from the list of Schedule I drugs under the federal Controlled Substances Act, and this is a move that many think the federal government is will make in the not-so-distant future.
For these reasons, below are some suggestions on practices that employers can adopt in order to minimize their risk of employees filing suit based on claims related to marijuana use.
- Eliminate random drug testing in favor of testing based on reasonable suspicion of impairment. The idea of testing for impairment is also important because most tests for marijuana do not actually analyze the amount of tetrahydrocannabinol (THC) (the active ingredient that gives marijuana many of its psychoactive effects), but rather search for metabolites, which are present in the body long after the effects of marijuana have worn off. On a related note, OSHA was planning on implementing a new rule which could seriously impact workers’ compensation drug policy violation defenses, as explained by Evans & Dixon attorney, James B. Kennedy here. Due to concerns in the legal community, OSHA has postponed its implementation of this rule in order to provide more guidance. One of the OSHA’s main points in this rule involves testing for employees for impairment, as opposed to chemicals simply remaining in one’s system.
- Eliminate clean-sweep, zero-tolerance drug policies and adjust tolerance based on an employee’s job duties. Employers can have multi-tiered drug policies that are stricter on those employees whose jobs could potentially cause injury. This will also protect employers from negligent hiring and negligent supervision claims.