May 01, 2018 Substantive Law

The 411 on the 420: Clearing Smoke Around Marijuana Laws

By Lindsey Wagner

Reprinted with permission from ABA Labor and Employment Law newsletter, Winter 2018 (46:2), at 3, 10-11. ©2018 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

It’s highly likely that if you’re an employer in one of the 11 states that have anti-discrimination provisions within their medical marijuana statutes, you need to worry about potential employment discrimination claims from employees using medical marijuana with a valid prescription.

At the 11th Annual Labor and Employment Law Conference, panelists demystified the current law on marijuana in the workplace during the panel “411 on the 420: Clearing Smoke Around Marijuana Laws.” Panelists included Eric Su from Ford & Harrison, Rebecca Meissner from Alaska Airlines, Ellen M. Kelman from The Kelman Buescher Firm, Michael C. Subit from Frank Freed Subit & Thomas LLP, and Joyce Walker-Jones from the U.S. Equal Employment Opportunity Commission.

To understand the complications of marijuana in the workplace, as Subit explained, “you have to start off with the fact that under federal law, marijuana is listed as a Schedule I controlled substance.” Thus, the federal government has maintained the position that marijuana has no medical benefits. The conflict between some states’ medical marijuana laws and federal law came to a head in 2005 in the case of Gonzales v. Raich, 545 U.S. 1 (2005), with the question of whether federal marijuana law (the Controlled Substances Act) preempted states’ marijuana laws (California’s Compassionate Use Act) and whether the Controlled Substances Act exceeded Congress’ power under the Commerce Clause.

In a 6-3 decision, the Supreme Court found that the commerce clause gave Congress the authority to prohibit the local use of marijuana permitted by state law. But as emphasized by Subit, no state has a statute providing employment protections regarding recreational marijuana. However, the analysis is different when marijuana is prescribed for a medical purpose. Currently, 11 states have anti-discrimination provisions within their medical marijuana statutes that offer employment protections for employees using medical marijuana. These anti-discrimination provisions offer a source of protection for employees using medical marijuana in those states.

Courts have heard challenges by employers to these explicit anti-discrimination provisions, but these challenges have been unsuccessful so far. The first of these cases was heard in Rhode Island, where the state court rejected the employer’s federal preemption argument and held state law provided a private right of action. Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I Super. May 23, 2017). The Rhode Island medical marijuana statute contains an explicit antidiscrimination provision. The issue in Callaghan involved an alleged violation of Rhode Island’s medical marijuana statute by a plaintiff who disclosed she had a medical marijuana card for pain during an interview and was denied employment. In an opinion that begins with the quote, “I get high with a little help from my friends,” the trial court granted the plaintiff’s motion for summary judgment and held that refusing to hire someone because she could not pass a drug test due to medical marijuana use outside the workplace violated the Rhode Island medical marijuana law. The court further held that the law permitted employers to discipline employees for coming to work under the influence of marijuana in a manner that affects job performance, but rejected the employer’s argument that the statute’s protection for being a medical marijuana card-holder did not cover the actual use of medical marijuana.

In a subsequent case in Connecticut, a federal court was presented with a case about Marinol—a legal, synthetic form of marijuana. Noffsinger v. SSC Niantic Operating Co., LLC,—F. Supp. 3d— 2017 WL 3401260 (D. Conn. Aug. 8, 2017). In Noffsinger, the plaintiff had registered as a medical marijuana patient and used Marinol for PTSD. She received a job offer as a recreational therapist at a nursing facility and provided the company with her registration certificate. The plaintiff explained to the company she used Marinol only at night, but failed a pre-employment drug test based on cannabis. She was terminated and brought claims for violations of the state medical marijuana statute, which contains an explicit anti-discrimination provision.

The employer moved to dismiss based on federal preemption grounds, including the Controlled Substances Act, the ADA, and the Food Drug and Cosmetic Act. The court upheld Connecticut’s statutory employment protections for medical marijuana. The court found that the Controlled Substances Act did not regulate employment and while Congress made it a federal crime to use marijuana, it did not make it illegal to employ a marijuana user. As to the ADA, the employer argued that the ADA’s savings clause preempted the state statute. In rejecting this argument, the court held that although the ADA allows employers to prohibit illegal use of drugs in the workplace it does not give employers the power to regulate non-workplace activity, noting “the ADA is not an employer’s Magna Carta to engage in drug testing for all employees.” During the panel, Walker-Jones reminded the audience that the ADA would not cover someone who is currently engaging in the use of illegal drugs, but that the ADA does protect someone who has a history of drug addiction. Those employees may be entitled to a reasonable accommodation, for example an employee with a former addiction who is more tempted to use drugs when they may be under stress in the office being permitted to work from home. As far as what is “current use,” WalkerJones cautioned that there is no bright line—“current use” is not necessarily limited to a given number of days or weeks. In some cases, it may be a year, but the question is up for debate.

Despite these cases, as well as the trend in the majority of states towards some sort of marijuana legalization (recreational, medical, or otherwise), the panelists reminded the audience that all medical marijuana statutes, including statutes such as Rhode Island’s, permit an employer to discipline an employee for coming to work under the influence if it impacts their job performance.

In Kelman’s practice, which involves handling issues with union-represented workers in labor arbitrations, she finds that illegality of the drug is rarely the issue. Rather, the questions typically surround whether off-duty conduct can be subject to discipline. In those situations, the outcome largely depends on how much proof the arbitrator requires as to impact on the workplace. Surprisingly, the analytics involved in the determinations are not terribly new—it is the same analysis that arbitrators have been applying for years to questions involving off-duty social media use or even off-duty pornography use. Kelman finds that there is a split among arbitrators as to whether off-duty use of marijuana (whether it is illegal or legal under state law) is, in itself, grounds for discipline or whether the employer must show the individual was impaired at work.

What does all of this mean for employers? Should employers follow federal or state law? In answering the difficult question for employers of whether they should follow federal or state law, all of the panelists agreed: it depends. And more specifically, it depends on the employer’s industry. For instance, if some of the employer’s employees are performing work involving the Department of Transportation, or the Department of Defense, they may be subject to random testing and prohibited from using illegal drugs under federal law. But what about for employers who are not heavily regulated? Su and Meissner recommended a default analysis with several steps should first view each situation from the most employee-protective perspective. Next it should strip away the protections after considering the underlying conditions for which the marijuana use is prescribed and the essential job functions and the hardship considerations for the employer.

The panelists also provided some best practices and tips for employers. First, they suggested that employers consider adopting policies, like a policy which grants anti-discrimination protections to medical marijuana card holders, which allows the applicant/employee to request a reasonable accommodation which would then be discussed. When an employer is terminating someone for medical marijuana use, the employer should confirm the use is illegal (marijuana) rather than legal (Marinol). Further, hard and fast rules regarding the adoption of zero-tolerance policies for medical marijuana should be avoided. In closing, all the panelists agreed that there are lots of unknowns when it comes to medical marijuana in the workplace.

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Lindsey Wagner

Lindsey Wagner (lwagner@scottwagnerlaw.com) is a partner at Scott Wagner and Associates, P.A. in Burbank, California.