When an employee with a valid state prescription for the use of marijuana tests positive during an employment-related drug screen, employers are faced with a difficult dilemma; this is especially true because an individual can test positive for marijuana use without being under the influence of the drug at the time of the test.
Despite the growing trend toward state legalization, use and possession of marijuana is still a violation of federal law. In 2005, the United States Supreme Court held that the federal government had the right to regulate marijuana as it saw fit regardless of conflicting state laws permitting its use (Raich v. Gonzales, 545 U.S. 1 (2005)).
Nonetheless, states have continued their medical marijuana programs, and employers are frequently required to deal with the ramifications of those programs.
One source estimates there are 300,000 registered medical marijuana users in the United States, and the numbers are rapidly increasing.
Legal Requirements
While the developing trend under the Americans With Disabilities Act (ADA) is that an employer’s discipline of an employee for the use of medical marijuana is not a violation of the act, regulations are still murky in this area. Moreover, regardless of federal law, state laws may provide additional protections to employees under these circumstances.
Under the ADA, an employer may not discriminate against a qualified individual with a disability” for obtaining treatment for that disability or for the side effects of that treatment. However, the ADA expressly provides that an employer may 1) prohibit the “illegal use of drugs” at the workplace by all employees; and 2) require that employees not engage in the “illegal use of drugs” in the workplace. The term “illegal use of drugs” means the use of drugs, the possession of which is unlawful under the federal Controlled Substances Act. The term includes the use of marijuana for any purpose. For that reason, the ADA should not act as a bar to an employer’s discipline of an employee who is using medical marijuana.
Nonetheless, if the medical condition for which marijuana has been prescribed is a disability, a claimant can still be a “qualified individual with a disability” as long as he or she can show an employment decision was made on the basis of such disability. For an employment decision citing current marijuana use, the employee would need to show one of the following:
- His or her underlying disability was a motivating factor in the employer’s decision, even if the employer was also motivated by the employee’s “illegal use of drugs”; or
- His or her “illegal use of drugs” was a mere pretext for discrimination on the basis of his or her underlying disability
Aside from the ADA, some federal laws require employer testing of employees. The prohibition of marijuana use for any purpose continues to be a mandate of the Drug-Free Workplace Act of 1988 for federal contractors. Industries regulated by the Department of Defense and Nuclear Regulatory Commission also are subject to federally mandated requirements to maintain a drug-free workplace. The Department of Transportation has similar regulations and has specifically determined that transportation workers may not use marijuana even in states where its use is legal. Every employer also has an OSHA-mandated duty to provide a safe workplace. Permitting an employee to work when there is reason to believe his or her judgment is impaired by the use of marijuana may violate that duty.
State Laws
Irrespective of federal law, state laws provide employees varying levels of protection. For example, the supreme courts of California and Oregon have held that their laws protect medical marijuana users from state prosecution, but not from employment discrimination. A bill to add employment protection to the California law was passed in 2009 but was vetoed by the governor.
Other states have more protections. In Colorado, for example, the right to use medical marijuana is contained in the state’s constitution. Further, Colorado, similar to several other states, has a “Lawful Off-Duty Statute” that prohibits employers from disciplining employees for off-duty legal conduct. Michigan prohibits any business from denying “any right or privilege” to a medical marijuana user. However, even in states that provide some level of protection for medical marijuana use, there is no protection for an employee who shows up to work under the influence.
Recommendations
Employers can take several steps to minimize the risk of a lawsuit for negative employment actions related to the use of medical marijuana while maintaining a drug testing policy:
The drug testing policy must clearly prohibit the use of any drugs and other controlled substances that are illegal under federal or state law.
When faced with an employee believed to be under the influence of a drug, document the facts that demonstrate the suspicion. It is far easier to defend a termination based on working under the influence than it is for a positive test.
If federally regulated, refer to that fact in policies and any disciplinary or other negative employment actions. Federal law trumps stronger state protections.
If not federally regulated, consider whether the potential state law exposure is worth the benefits derived from a random drug testing policy. A policy that allows for the accommodation of medical marijuana users who have valid prescriptions and who will not be under the influence at work may be a better alternative.
Source: This article is reprinted with permission from McGuireWoods, an international law firm serving public, private, government, and non-profit clients from industries including automotive, energy resources, health care, technology, and transportation. The authors are Eric B. Martin, associate, and Jeffrey S. Shapiro, partner, of the firm’s Richmond, Va., office. Visit www.mcguirewoods.com.
