March 15, 2018 Top Story

    Trend in Medical Marijuana Suits Favors Employees

    Employers walk a fine line between new laws and existing obligations

    By C. Thea Pitzen

    In three cases last year, courts have ruled in favor of medical marijuana users in suits against employers. ABA Section of Litigation leaders caution that employers should take note of this emerging trend in employment litigation.

    Recent Decisions Favor Employees

    In May, a Rhode Island Superior Court held that Rhode Island’s medical marijuana act created an implied private right of action and that an employer had violated the act when it refused to hire a medical marijuana user. In July, the Supreme Judicial Court of Massachusetts held that while the Massachusetts medical marijuana act did not create a private cause of action, failure to accommodate an employee’s use of medical marijuana might run afoul of the state’s Fair Employment Practices Law. Most recently, in August, the U.S. District Court for the District of Connecticut held that Connecticut’s medical marijuana statute did create an implied private right of action and was not preempted by any federal law, including the Controlled Substances Act. The federal court largely denied the defendant employer’s motion to dismiss, explaining that “a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason.”

    Taken together, these recent decisions reflect an “emerging trend that employers have to be aware of,” cautions Darryl G. McCallum, Baltimore, MD, cochair of the Programming Subcommittee of the Section of Litigation’s Employment & Labor Relations Law Committee. The trend is “obviously emerging in the direction of being employee-friendly,” which is concerning from the employer perspective, adds Andre’ B. Caldwell, Oklahoma City, OK, former cochair of the Section’s Minority Trial Lawyer Committee. Particularly for multi-state employers, this trend means that “they have to pay attention to each particular state’s laws and be aware of what the requirements are with respect to potential discrimination claims filed by medical marijuana users,” McCallum advises.

    New Trend Creates Tension with Existing Obligations

    The emerging trend regarding medical marijuana statutes creates tension for employers, McCallum explains. On the one hand, employers must be aware of potential discrimination claims; on the other hand, employers are subject to federal law requirements to provide a safe workplace and must be cognizant of potential negligent hiring and negligent retention claims when things unfortunately do go wrong in the workplace, he adds. Employers may also have contractual relationships involving federal benefits that would be jeopardized if a medical marijuana user is hired, McCallum notes, which creates another source of tension. “Employers need to be cognizant of all requirements under federal laws and contracts, despite any state laws that may prohibit discrimination against medical marijuana users,” McCallum advises.

    While it is impossible to predict with certainty, McCallum can envision claims arising against an employer if a safety issue involving a medical marijuana user occurs in the workplace and it is later revealed that the employer was aware that the employee had failed a drug test at the outset of employment. So, whether they hire the medical marijuana user or not, “employers are exposed to risk either way,” McCallum explains. “We don’t know how this tension will ultimately play out,” he adds. Caldwell agrees that employers’ “hands are tied” in many respects, as they face potential legal issues if the workplace is unsafe but may also face causes of action for discrimination if they do not hire medical marijuana users who test positive on drug screens.

    Path Forward Remains Uncertain

    While a majority of states permit the use of marijuana for medicinal purposes, the specific state statutes vary significantly. Of interest in the employment law context, nine states—Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, and Rhode Island—have statutes that explicitly prohibit employment discrimination against medical marijuana users. Regarding future development of the emerging employee-friendly trend, it is easier to envision it developing “along more narrow lines in states that have specific anti-discrimination provisions,” says McCallum. To see similar rulings in states without such provisions “basically would be courts creating a cause of action where there was none before,” he adds. On the other hand, “nothing in the Massachusetts statute allowed a cause of action,” notes Caldwell. If other courts follow the Massachusetts court’s approach, those courts are “going to start extrapolating out to create a cause of action and permit potential recovery by employees” regardless of how narrowly tailored the statute may be, Caldwell adds.

    While an employer retains the right to terminate, suspend, or otherwise take action against an employee who cannot perform his or her job duties because of medical marijuana use, statutes providing for rights of action against employers on the basis of discrimination against medical marijuana users create a slippery slope, cautions Caldwell. “I think this trend is fraught with problems,” he adds.

    Key Takeaways for Employers and Practitioners

    To address this developing trend, multi-state employers should have specific state addenda to any drug testing policies in their employee handbook, advises McCallum. The addenda will apply in particular jurisdictions, such that the employer “would not necessarily change its entire company policy but would specifically have state law addenda indicating that the employer will comply with all applicable laws in that jurisdiction,” including any medical marijuana statutes, McCallum explains. Employers should make sure that they have written policies that are tailored to the specific jurisdiction and attached to the handbook, McCallum adds.

    “As an employer, your main concerns are efficiency in the performance of the job at hand and the prevention of any harm or safety issues,” says Caldwell. “No matter how you look at it, marijuana is still a Schedule I controlled substance” that has the ability to impair those who use it, he adds. To that end, “until a state statute explicitly prohibits discrimination on the basis of medical marijuana use or provides a private cause of action against employers who run afoul of such provisions, employers would be well advised to continue to regulate those activities with the creation of a safe and efficient workplace being the focal point of the decision-making,” Caldwell advises.

    Caldwell likens the emerging trend with respect to state medical marijuana laws to recent developments in the law with regard to non-compete agreements. Just as states have varying laws concerning the reach, scope, and approach to non-compete agreements, states have widely varying medical marijuana laws, he explains. In both contexts, multi-state employers must keep those variances in mind, Caldwell adds. Finally, just as in the context of non-compete agreements, state medical marijuana laws are likely to lead to plenty of future litigation as this trend continues to develop, concludes Caldwell.

    C. Thea Pitzen is a contributing editor for Litigation News .

    Hashtags: #MedicalMarijuana #EmploymentLaw #WeedAtWork #antidiscrimination

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