Last updated: September 28, 2020
Generally speaking, most states that have enacted medical marijuana laws have treated issues relating to employers the same, as have courts that have decided employer-related questions on medical marijuana. The general consensus in the courts and the legal commentaries is that these laws do not require employers to modify their employment practices, drug-free workplace policies, drug testing policies, or accommodation policies. The courts have consistently held for employers in these states. In fact, the state supreme courts in California, Montana, Oregon and Washington have all upheld employers’ decisions to terminate medical marijuana users.
Courts have found that because federal law preempts state medical marijuana laws, medical or recreational marijuana users authorized under state laws are not protected from employer drug testing policies. Further, the courts have held that medical marijuana laws do not create a public policy protecting medical marijuana users.
Courts have also unanimously held that the Americans with Disabilities Act (ADA) does not protect medical marijuana users or provide them a right to accommodation for medical marijuana use because marijuana is still an illegal controlled substance under federal law, regardless of any changes in state laws. The ADA does not protect employees currently using illegal drugs, and because marijuana remains an illegal drug under federal law, these various state laws will not make its use “lawful” under federal law. Accordingly, the ADA excludes marijuana use from its protection.
Employers may want to get real specific in reviewing their drug free workplace program regarding their policies related to medical or recreational marijuana. Employers will have to decide – will it be our policy to accommodate medical marijuana; the answer would certainly be no for safety sensitive positions.
One of the difficulties of accommodating medical marijuana uses would be the process to determine proof of a medical marijuana exemption; certainly a discussion with the medical review office would be appropriate for this determination. For employers determined that they want to broadly accommodate medical or recreational marijuana users, it might be in their best interest to remove THC from their testing panels. When considering this decision an employer should work directly with their employment attorney to determine if this course of action reflects the company’s best interests and complies with federal, state, and local laws.
Many employers will decide that a policy to accommodate medical marijuana is not in their best interest for the safety and welfare of all of their employees. These employers should consider reviewing and revising their written drug testing and drug-free workplace policies to make clear that marijuana use and possession, “even for medical or recreational purposes,” is prohibited and may subject employees to disciplinary action.
The Department of Transportation (DOT) has explicitly stated that the drug testing requirements, and the ramifications of a positive test, apply to medical marijuana users. Under DOT regulations, employees in safety-sensitive positions, such as a truck driver, who tests positive for drugs, must be removed from those safety-sensitive positions until certain return-to-duty requirements are met. Employers who fail to comply with these regulations face the risk of fines, closure and potential loss of federal funding.
Federal contractors and organizations receiving grants need to tread carefully when reviewing their drug free workplace policies as they relate to medical and recreational marijuana. The Drug Free Workplace Act of 1988, which applies to recipients of federal contracts and grants, requires among other things, that the employer maintain a workplace where employees are prohibited from using controlled substances, including marijuana, which is classified as an illegal substance under federal law. The act permits employers to discipline employees who use medical marijuana in the workplace.
Employers should be prepared for challenges and expect an increased number of employees who claim that the new law protects them from adverse consequences as a result of a failed drug test. Employers and human resources professionals should consult with legal professionals and review their drug testing and drug-free workplace policies for possible revisions incorporating new laws regarding medical and recreational marijuana. More and more States are moving to passage of medical marijuana laws so this discussion will continue and employers will be forced to adapt as laws are passed and court decisions dictate appropriate best practices.