When Employment Law Meets Legalized Marijuana
Nationwide, there has been a growing movement to relax state laws prohibiting the possession and use of marijuana. In 1996, California became the first state to legalize the use of marijuana for medicinal purposes. As of 2013, 18 states plus the District of Columbia have enacted similar laws. Additionally, a few states have recently decriminalized recreational use of marijuana, including ballot initiatives in Colorado and Washington that legalized recreational marijuana use.
Despite the legalization of marijuana at the state level, marijuana is still illegal under the federal Controlled Substances Act. In recognition of conflicting state laws, however, federal enforcement of the act has been curtailed in states where medical marijuana is authorized.
The continuously developing state marijuana laws and their conflict with federal law raise a host of questions for employers. This article explores the application of marijuana laws to the workplace and answers common questions posed by employers attempting to navigate these laws.
Medicinal Marijuana Laws
Many state laws, including those in Colorado, Hawaii, New Mexico, and Washington, D.C., are silent on their effect upon the workplace. Laws (including case law) in other states, such as Washington, Montana, Oregon, California, and Massachusetts, make clear that employers may prohibit use or possession of marijuana in the workplace, but otherwise are silent on an employers rights and obligations toward medical marijuana users. Laws in several other states, including Arizona, Connecticut, Delaware, Maine, Michigan, and Rhode Island, include provisions explicitly addressing the laws impact on the workplace.
In general, medical marijuana laws that are silent about their impact on the workplace do not impose any restrictions or obligations on employers. Furthermore, courts that have addressed the impact of such laws on the workplace have typically not found restrictions or obligations beyond those expressly set forth in the statute, e.g., Casias v. Wal-Mart (6th Cir. 2012); Roe v. Teletech (Wash. 2011); Johnson v. Columbia Falls Alum. (Mont. 2009); Ross v. RagingWire Telecomms. (Cal. 2008).
Recreational Marijuana Laws
To date, Washington and Colorado are the only states to legalize the recreational use of marijuana by statute. The Alaska Supreme Court has held that residents have a constitutional privacy right to possess, use, and cultivate small amounts of marijuana for personal use in ones home. Ravin v. State (Alaska 1975). The Washington statute is silent about its effect on the workplace, whereas the Colorado statute explicitly permits employers to prohibit marijuana possession and use in the workplace, and to apply drug policies and testing programs to employees who use marijuana. Informal guidance suggests that Washingtons recreational marijuana law, like its medicinal marijuana law, is unlikely to have any impact on employers rights in the workplace. Moreover, the state agency that regulates the sale and use of marijuana has stated that it does not expect the recreational marijuana law to inhibit employers from drug testing employees.
Application of Marijuana Laws to the Employment Relationship
Can an employer prohibit marijuana use in the workplace?
In every state that permits medicinal or recreational marijuana, employers may lawfully prohibit employees from using marijuana during work hours or on work premises. Moreover, it is clear in every state, except Connecticut and Hawaii, that employers may prohibit employees from possessing marijuana in the workplace, regardless of whether the employee may lawfully possess the drug outside the workplace. Employers in Connecticut and Hawaii may also have the right to prohibit possession in the workplace, but the statutes in those states are unclear.
Can an employer prohibit employees from working while under the influence of marijuana?
Employers in every state may lawfully prohibit employees from working while under the influence of marijuana and may discipline employees who violate such prohibition. In some states, however, under the influence is more narrowly construed for marijuana use than for other controlled substances. For instance, Arizona employers typically may not rely exclusively on a positive drug test for marijuana to conclude that an employee is under the influence at work. Instead, Arizona employers may need to establish impairment through external signs and symptoms in combination with drug test results to take lawful disciplinary action.
Can an employer refuse to hire a qualified applicant who tests positive for marijuana use in a pre-employment drug test?
In most states, employers may lawfully refuse to hire an applicant who tests positive for marijuana, even if the marijuana use is legally authorized under state law. See e.g., Roe (Wash. 2011); Ross (Cal. 2008). Arizona and Delaware, however, prohibit employers from refusing to hire on the basis of a positive drug test for marijuana components or metabolites, except where the employer would lose a federal license or revenue by hiring a marijuana user. Ariz. Rev. Stat. § 36-2813 (2012); 16 Del. Code § 4905A (2012). Further, Arizona, Delaware, Connecticut, Maine, Rhode Island, and Michigan prohibit employers from refusing to hire an otherwise qualified applicant based upon his/her status as a registered medicinal marijuana cardholder.
Can employers drug test employees and take disciplinary action against an employee who tests positive for marijuana?
State laws permitting medicinal or recreational marijuana do not prevent employers from drug testing employees to the extent otherwise permitted by applicable law. Because some state laws restrict employers ability to drug test employees under certain circumstances (e.g., random testing is sometimes impermissible), employers should seek legal advice before implementing a drug testing policy.
In all but five states, it is clear that employers may lawfully discipline employees who test positive for marijuana, even where the employee can demonstrate compliance with state law. See Casias (6th Cir. 2012); Roe (Wash. 2011); Ross (Cal. 2008). Courts in several jurisdictions have held that state medical marijuana laws do not provide marijuana users with a claim or civil remedy against their employer for discipline or discharge due to a positive drug test. See id.
Arizona and Delaware generally prohibit employers from taking action against registered marijuana users merely because they test positive for marijuana without additional evidence of impairment at work, except where the employer would lose a federal license or revenue by continuing to employ a marijuana user. Ariz. Rev. Stat. § 36-2813 (2012); 16 Del. Code § 4905A (2012). It is unclear whether Connecticut, Maine, or Rhode Island prohibit discipline against employees who test positive for marijuana. Those states, along with Arizona, Delaware, and Michigan, however, do prohibit discipline or discrimination against employees due to their status as registered cardholders. Ariz. Rev. Stat. § 36-2813 (2012); 8 Conn. Gen. Stat. § 21a-408 (2013); 16 Del. Code § 4905A (2012); Me. Rev. Stat. § 2423-E (2012); Mich. Comp. Laws § 333.26421 et seq. (2012); R.I. Gen. Laws § 21-28.6 (2012). At a minimum, employers in all six of these states may lawfully discipline employees who report to work impaired.
Can an applicant or employee with a marijuana prescription claim disability status and seek accommodation under the Americans with Disabilities Act?
Because medical marijuana remains illegal under federal law, its use is not protected by the Americans with Disabilities Act (ADA), even in states that have legalized medicinal marijuana. See James v. City of Costa Mesa (9th Cir. 2012); see also Casias (6th Cir. 2012); Emerald Steel Fabricators v. BLI (2010). Accordingly, medical marijuana users do not have a viable claim of discrimination, and marijuana use need not be accommodated under the ADA. Even though medicinal marijuana use is not protected by the ADA, the underlying condition may still be a covered disability. Accordingly, employers should engage in an interactive process with employees who are medicinal marijuana users to determine whether a reasonable accommodation may be required to accommodate a protected disability.
How should employers handle violations of their drug-free workplace policies?
The Drug-Free Workplace Act (DFWA) requires certain federal contractors and all federal grantees to provide a drug-free workplace as a condition of receiving a contract or grant from a federal agency. Companies subject to the DFWA are not excused from compliance with the act by state medicinal marijuana laws. Indeed, the laws in Arizona, Washington, and Delaware include an explicit exception for compliance with the DFWA.
As a general matter, employers should implement clear policies directly addressing marijuana use and possession in the workplace and drug testing, if applicable, that comport with applicable state laws. In all states, such policies may include a prohibition against using marijuana at work and from working while impaired by the drug. Employers should enforce such policies consistently and in a nondiscriminatory manner. Application of such policies to medicinal marijuana users (or recreational users in Alaska, Washington, and Colorado) should be undertaken with caution and after seeking legal advice. Because laws regulating marijuana use are continuously evolving, all employers are well advised to seek legal advice to avoid inadvertently engaging in unlawful conduct.
Scott A. Faust is a partner and Vanessa D. Gilbreth is an associate in Proskauer Roses Labor and Employment Law Department, resident in the firms Boston office. The authors wish to thank Laura Deck, also a member of Proskauers Labor Department in Boston, for her assistance in preparing this article.