Hunton Employment & Labor Perspectives

Twenty-three states and the District of Columbia have enacted laws which decriminalize the use of marijuana for medical purposes.  Under those statutory schemes, individuals with qualified medical conditions may become registered cardholders and obtain cannabis for medical purposes, often from state-regulated dispensaries.  These developments present an array of new challenges for employers to navigate.

1. The Starting Point: Employers May Require A Drug-Free Workplace

Marijuana remains an illegal drug under the federal Controlled Substances Act (21 U.S.C. § 812(b)(1)), and safety standards imposed by federal agencies, including the Department of Transportation, do not permit the use of medical marijuana by regulated employees, such as those in safety-sensitive positions.  Marijuana also is a controlled substance in every state but Washington and Colorado, which have made recreational use of marijuana lawful.  Therefore, employer drug testing programs rest on the premise that marijuana use is unlawful, and employers may insist on a drug-free workplace.

Decriminalization of marijuana for medical purposes has not altered this premise.  More than half of the 24 existing medical marijuana laws (Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Massachusetts, Michigan, Montana, New Hampshire, New Jersey, Rhode Island, Vermont and Washington) explicitly prohibit marijuana use at work, and/or provide that employers need not accommodate any form of marijuana use in the workplace. In light of these provisions and the federal Controlled Substances Act, state courts in California, Colorado, Washington and Montana, as well as the federal appellate courts for the Sixth and Ninth Circuits, all have held that state medical marijuana laws do not require employers to accommodate medical marijuana use in the workplace.  However, nuances created by anti-discrimination provisions in eight of the twenty-four medical marijuana laws warrant employer attention,  particularly with respect to drug testing programs.

2.  Another Layer: Anti-Discrimination Provisions in State Medical Marijuana Laws

The medical marijuana laws of the following eight states contain anti-discrimination or reasonable accommodation provisions addressed to employers:  Arizona, Connecticut, Delaware, Illinois, Maine, Nevada, New York and Minnesota.  Three of those eight laws (Arizona, Delaware and Minnesota) address workplace drug testing.  Although none of these laws requires employers to tolerate on-duty drug use, nor do they prohibit workplace drug testing, some anti-discrimination provisions raise questions about the validity of adverse employment actions based on positive drug tests.

A. Drug Testing
The anti-discrimination provisions have in common a prohibition against taking adverse employment actions against employees solely on the basis of their participation in the state’s medical marijuana program, unless doing so would violate federal law or regulations, or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations. This straightforward language prohibits status-based discrimination, and does not appear to preclude adverse action based on drug test results. (Ariz. Rev. Stat. §36-2813(B); Ct. Gen. Stat. 420f § 21a-408p(b)(3); 16 Del. Code § 4905A(a)(3)(a); 410 ILRC 30/40(a)(1); M.R.S Title 22 §2423-E(2); Minn. Stat. §152.32(3)(c); Nev. Rev. Stat. § 453A.800 (2).)

Additional analysis is required when the anti-discrimination provisions extend to a person’s positive drug test for cannabis components or metabolites, as in Delaware, Arizona and Minnesota. (16 Del. Code § 4905A(a)(3)(b); Ariz. Rev. Stat. § 36-2813(b)(2); Minn. Stat. § 152.32(3)(c)(2) and (d).)  In those states, a positive result for cannabis cannot automatically be grounds for a refusal to hire or any other adverse action.

Rather, employers must engage in a fact-specific inquiry: whether the applicant or employee is lawfully enrolled in the state’s medical marijuana program, whether the level of cannabis shown on the test is consistent with such use, and whether there is a job-related reason that a medical marijuana user could not be hired into or remain in the position in question.  Minnesota’s law explicitly requires that employees be given the opportunity to provide an explanation for the results prior to any adverse employment action being taken. Minn. Stat. § 181.953.

If the position in question is safety-sensitive (e.g., truck driver), there is likely a legitimate basis for taking an adverse action.  Without a safety-based justification, however, employers must carefully deliberate and document reasons for disqualifying a medical marijuana user from employment. Legal counsel should be consulted in such situations.

B. Disability Accommodation
Yet another consideration involves the accommodation of disabilities. A “certified patient” under New York’s medical marijuana law is deemed to have a disability, as defined by the New York Human Rights and Civil Rights Laws,  and employers must reasonably accommodate the underlying disability associated with the legal marijuana use.  New York Health Law, Title V-A, § 3369(2). Nevada requires employers to reasonably accommodate the medical needs of an employee who uses medical marijuana, provided that such accommodation would not pose a threat of harm or danger to persons or property, impose an undue hardship on the employer, or prohibit the employee from fulfilling his or her job responsibilities.  Nev. Rev. Stat. § 453A.800(3).

Accommodating a disability imposes greater obligations on employers than simply evaluating whether there is a business or safety justification for banning a medical marijuana user from its workplace. Employers must assess whether the disabled individual can perform the essential functions of the job with or without reasonable accommodation, and engage in an interactive process to determine if reasonable accommodations exist. (See, 42 U.S.C. § 12111(8)-(9).) Safety considerations must be analyzed with reference to an identifiable “threat of harm” or danger to persons or property;” a more exacting standard than a simple job-related justification for an adverse action.  This also is an inquiry that should be undertaken with the assistance of legal counsel.

C. Recreational Marijuana Use
Finally, employers should be aware of separate statutes that may enhance the protections of recreational use of marijuana by employees, such as the Colorado Lawful Off-Duty Activities Statute, Colo. Rev. Stat. § 24-34-402.5.  That law prohibits employers from terminating employment on the basis of a person’s lawful activity outside the workplace during nonworking hours. Because recreational marijuana use is legal in Colorado,  a positive result on a workplace drug test in that state would not be grounds for termination if the results suggested that the employee’s medical or recreational use of marijuana took place outside of work.  The scope of the Lawful Activities Statute currently is under review by the Colorado Supreme Court in a case involving a quadriplegic employee who used medical cannabis to control muscle spasms and was discharged after a positive drug test.  Coats v. Dish Network LLC, Court of Appeals Case Nos. 12CA595 & 12CA1704.

Employers may continue to implement robust workplace drug testing programs in all states with medical marijuana laws.  However, where those laws include anti-discrimination provisions, there cannot be a cookie-cutter approach to positive marijuana drug tests. Rather, a fact-specific, position-specific inquiry is called for, in which employers articulate legitimate business and safety grounds for any adverse action and (when necessary) conduct a disability-related reasonable accommodation analysis.