INTERSECTION OF MEDICAL MARIJUANA AND EMPLOYMENT RULES

I received an email from a dedicated reader last night inquiring how the legalization of marijuana use for medicinal purposes will impact drug-free workplace policies and employer drug testing. Frankly, these issues remain unresolved but a multitude of state laws which, while legalizing the use of marijuana, did not address the conundrum created in the workplace. Most states did not provide for civil protections for medical marijuana patients. The highest courts of California, Oregon, Washington and Montana have all upheld employer decisions to discharge workers and denied them the right to “bootstrap” the public policy permitting the use of the drug for pain relief into employment protection. These courts have clearly articulated that legalization merely protects patients from criminal sanctions and does not give rise to civil remedies or protections. Workers have subsequently raised the question of whether they have cover under the Americans With Disabilities Act; this has already been answered by Oregon’s high court which noted that federal law, which has not sanctioned the use of marijuana, would automatically preempt such an argument.

Some states have “lawful activities” statutes, which prohibit employers from taking punitive action against workers for engaging in lawful activities or consuming legal products (such as alcohol, for those over the legal age) while not at work. However, even Colorado, which has such a law, has held that a lawful activities statute does not prevent an employer from discharging a worker who tested positive for marijuana and who was a licensed patient. As lawfulness, for the purpose of the statute, did not differentiate between federal and state law and as marijuana is illegal under federal law, the court concluded that users of medical marijuana were not shielded by the state statute.

States have recently taken action to protect medical marijuana users from discrimination based on their status (Connecticut, Maine and Rhode Island). Arizona and Delaware are in the forefront and have enacted statutes which specifically prohibit employers from discriminating against a registered patient who has failed a drug test for marijuana metabolites. However, in those states, if a patient possesses, uses or was impaired by marijuana in the workplace during hours of employment, he would not be protected.

I tried a number of employee misconduct cases involving marijuana and have become somewhat of an expert on the subject. (I can also tell you exactly where Bill Clinton inhaled the stuff years ago at Yale Law School, but that is a subject for another time!) First, the chemical metabolite in marijuana can be distinguished by spectroscope, from any other pharmaceutical or ingested substance. Second, the half-life of marijuana in the body is at least two weeks and the drug can have lingering effects.

It is apparent that employers who have federal contracts or are otherwise subject to federal regulation do not have to change their policies. Any businesses regulated by the U.S. Department of Transportation should continue to comply with federal law. Employers who are not subject to federal drug testing regulations should review their policies to insure that they are in compliance with local law.

This is an area of law that will be evolving and affecting more states in the coming years. If an employee comes to inform you that he is registered as a medical marijuana patient, what should you do?