The plaintiff brought suit in the District Court for the District of New Mexico, claiming that his discharge violated the state law prohibiting disability discrimination, because his medical marijuana use was treatment for his medical condition and the employer should have reasonably accommodated his use. The defendant argued that it was not required to provide any accommodations for use of a substance that remains illegal under federal law. Following a line of state court decisions from California, Colorado, and Oregon, the New Mexico court agreed with the defendant that an employer is not required to accommodate an employee’s illegal drug use because it would be permitting conduct that the Controlled Substances Act expressly prohibits.
Accommodating Medical Marijuana Use
Several states have decriminalized the use of marijuana for medical purposes. Most of those states have given medical marijuana users immunity from state criminal prosecution but have not required employers to accommodate the use of medical marijuana, the court found. “The state statute in this case that decriminalized medical marijuana use did not say anything about an employer’s duty to permit employees to use medical marijuana,” notes Daniel C. Gunning, San Diego, CA, Public Service Chair of the ABA Tort Trial and Insurance Practice Section’s Employment and Labor Law Committee. Some state statutes permitting medical marijuana use, such as Illinois, expressly provide that an employer is not prohibited from enforcing zero-tolerance policy or enforcing drug-free workplace policy as long as the policy is enforced in a “nondiscriminatory manner.” “If the statute is silent on the issue, then the court will not be willing to read the requirement that employers accommodate the marijuana use into the statute,” concludes Gunning.
Requiring a national employer like Tractor Supply to accommodate medical marijuana use where it is legal in some states would require the employer to tailor its policies to each employee of each different state, the court stated. This would require the employer to enforce a standard policy unequally, reasoned the court. “Employers with zero-tolerance policies prohibiting drug use must apply it consistently and equally to all employees,” advises Gunning. “Once an employer makes an exception for one employee, such as for medical marijuana use, a court will find that the employer does not really have a policy, and should make accommodations for all employees,” notes Gunning. “The best advice for an employer after this case is to be consistent in enforcing its policies,” he advises.
“Employers must enforce drug use policies equally amongst all employees,” agrees Teresa Rider Bult, Nashville, TN, cochair of the ABA Section of Litigation’s Employment & Labor Relations Committee. “Where a drug use policy is only passively enforced, it may inadvertently be applied unequally to employees,” states Bult. Employers must clearly communicate their drug-use and drug-testing policies to employees and that a positive drug test is grounds for termination, she advises. However, employers are urged to ensure that discharging an employee is not a pretext for discrimination, warns Bult.
Federal Preemption and Marijuana
“A state statute may eliminate the state criminal prosecution of marijuana without contradicting the Controlled Substances Act,” explains Bult. While the federal government cannot force states to prosecute marijuana production or possession, because of the Tenth Amendment to the United States Constitution, “employees should be advised that under federal law, the use of marijuana remains illegal whether it is for medical or recreational purposes,” cautions Bult. “Even if a state law decriminalizes the use of marijuana that does not mean an employer’s drug use policy is irrelevant. The fact is that federal law prohibiting the possession or production of marijuana preempts any state law that is contradictory,” continues Bult.
New Mexico’s decision followed decisions regarding accommodating employees’ medical marijuana use in states such as California, Colorado, and Oregon, notes Gunning. “This area is still evolving. It will be years before a case goes to the United States Supreme Court for review,” says Gunning. “This case, like the others, does not involve federal law. They are interpreting the state statutes permitting medical marijuana use, but there is no affirmative duty on the employer to accommodate the employee’s drug use,” Gunning adds.
“There is definitely the potential for a case involving state legalization of marijuana use to reach the Supreme Court,” believes Bult. However, the potential case would likely involve a similar plaintiff terminated for use of prescribed medical marijuana and a state law that affirmatively requires “employers to accommodate an employee testing positive for marijuana,” she states. This may be an area of contention for both the employer who has a zero-tolerance policy and an employee with a documented medical condition using medical marijuana at home only, asserts Bult.
Candice A. Garcia-Rodrigo is a contributing editor for Litigation News.