Michael Miklave
Michael Miklave ()

With Washington state and Colorado legalizing recreational marijuana, more than two dozen states permit the consumption of this once-taboo product. In 2013, Connecticut joined this group by adopting the Medical Marijuana Act, Connecticut General Statutes §21a-408 et seq. Connecticut employers inevitably will face litigation as medical marijuana use collides with substance abuse and employment policies. MMA discrimination cases will challenge the legal community and force litigants to address thorny legal issues.

The MMA strictly regulates the production, sale and use of medical marijuana. The act also creates a new “protected class” of medical marijuana users, and a statutory defense to their employment discrimination claims. Section 21a-408p(b) provides: “No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver. Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”

The MMA recognizes that employers possess legitimate interests in creating and maintaining a safe workplace and an efficient workforce.

Notwithstanding the statute’s language, however, challenges remain. Determining whether an employee has used or is under the influence at work will not be a simple process and proving it later in court will present difficult legal and evidentiary issues. Likely, Connecticut courts will soon be presented with discrimination cases arising from the alleged use of or intoxication by medical marijuana at work. (The U.S. Supreme Court’s recent Hobby Lobby decision at least raises the prospect that a closely held corporation may seek to discipline employees for their off-duty use of marijuana because of the corporation owners’ religious or other sincerely held beliefs.)

A thorny threshold issue concerns whether an employee can even assert a “medical marijuana discrimination” claim in the first place. While the Obama administration may not prosecute medical marijuana users, marijuana remains a controlled substance under federal law. One could argue that the Constitution’s Supremacy Clause prohibits states from making lawful what Congress has declared to be unlawful. At the same time, individual states possess broad powers to regulate or permit conduct by its citizens which do not have a federal impact. Resolution of this issue is not free from doubt. (See Coats v. Dish Network, 2013 COA 62 (Co. Appl. Ct. 2013), which interprets the Colorado statute prohibiting employers from discriminating against employees on the basis of lawful off-duty conduct. The court holds that marijuana use authorized under state statute was not “lawful activity” within meaning of the statute.)

If the courts reject the preemption defense, litigation will likely focus on whether the employee “used” marijuana at work or was otherwise under the influence. Either may be difficult to establish. Testing to detect current marijuana use or intoxication is problematic. Field sobriety and other tests to detect alcohol use or intoxication are much more accurate than tests to detect marijuana use or intoxication. According to a 2012 study, police department field sobriety tests have an 88 percent accuracy rate when used to detect drunken driving, but only a 30 percent accurate rate when used to detect marijuana intoxication. Urine testing may be no more reliable as no consensus has emerged on the proper blood level for marijuana intoxication. And, unlike alcohol, an individual can test positive for marijuana several weeks after she or he used the substance.

In the absence of reliable testing, employers may have to rely on personal observation. Slurred speech, change in effect, blurry vision and impact on balance have been hallmarks to establishing “reasonable suspicion” for purposes of administering a drug or alcohol test. But these “typical” behaviors showing possible intoxication simply may not be present in all users of marijuana.

As litigants and the courts gain more experience with “medical marijuana discrimination cases,” the parties will have to address the burdens of production and proof in such cases, and the consequences of an employer’s honest but mistaken conclusion that an employee used or was intoxicated at work. Courts could incorporate the well-established burdens of production and proof set out in McDonnell-Douglas and its progeny or adopt an entirely new framework. Resolution of this question presents difficult policy choices. Do the courts err on the side of the employer by recognizing a defense based on a “good-faith” mistaken belief that an employee used or was intoxicated at work? Or should they err on the side of the employee by imposing strict liability on an employer? And what do we do with the employee who never used marijuana in the first place, but nevertheless was falsely reported as having done so? These are difficult questions.

Given these questions, employers may find that the best course of action would be to train supervisors and staff to focus on employee conduct. Employers should train managers and update policies to take into account medical marijuana. Among other things, employers should:

• Train supervisors on procedures and protocols in the event an employee is suspected of being under the influence at work.

• Update drug-free workplace policies to take into account not only Connecticut’s medical marijuana law, but also the substantively different medical marijuana law adopted by New York.

• Identify an appropriate drug-testing facility in advance to permit a prompt response should an incident requiring testing develop.

• Establish a process to permit the employee accused of use or intoxication at work to present her or his defense to the allegation before finalizing an employment decision.

Consistent application of workplace policies and a renewed focus on addressing the effect of workplace misconduct can help to insulate employers from future liability. Courts have long recognized an employer’s right to discipline employees for abuse of illegal, over-the-counter and prescription drugs, and perhaps medical marijuana is no different. Time and court decisions will give guidance.