Hunton Employment & Labor Perspectives

What to do with an employee who tested positive for marijuana used to be an easy decision.  That is not necessarily the case anymore.

Thirteen states have legalized the use of marijuana for medical purposes.  Some of these states require employers to accommodate the medical use of marijuana.  Although use of marijuana remains illegal under the federal Controlled Substances Act regardless of whether it is medically prescribed, the U.S. Department of Justice announced in October 2009 that federal agents will target users and distributors of marijuana only when they violate both federal and state laws.  In addition, employers may have to consider whether they must allow employees to use medical marijuana as a reasonable accommodation pursuant to the federal Americans With Disabilities Act (ADA).  These developments have caused employers to re-examine their “zero tolerance” policies with regard to drug use by employees.

Employers should not despair.  Under most state laws, employers are free to discipline or terminate employees for positive drug test results, regardless of whether they are state sanctioned medical users of the drug.  Further, the Occupational Safety and Health Act (OSHA) imposes on employers a general duty to provide a safe workplace, which arguably supports excluding individuals who are deemed to be impaired by use of marijuana.  Even under the ADA, employers need not provide an accommodation that creates a direct threat or an unreasonable risk of harm.  In addition, under the federal Drug Free Workplace Act of 1998, federal contractors and recipients of federal grants must prohibit the use of marijuana as a condition of participation.

Perhaps most importantly, courts thus far have upheld the right of employers under federal law to terminate employees for engaging in activities that are prohibited by federal law, even if such activities are permissible under state law. Following are several examples of decisions that have addressed medicinal marijuana use:

• In 2008, the California Supreme Court upheld an employer's right to fire an employee who failed a pre-employment drug screening, even though he was taking marijuana prescribed by his physician to treat chronic pain. Ross v. Ragingwire Telecomm., Inc., 42 Cal 4th 920 (Cal. 2008)
• The Montana Supreme Court held this year that a state law allowing medical marijuana does not require employers to accommodate the medical use of marijuana in the workplace. Johnson v. Columbia Falls Aluminum Co., LLC, 2009 MT 108N (MT 2009)
• The Oregon Supreme Court recently held that the employer did not have to make reasonable accommodations for an employee who used medical marijuana to treat leg spasms because the employee did not meet the statute’s definition of a disabled person, as his impairment did not substantially limit a major life activity.  Washburn v. Columbia Forest Productions, Inc, 340 Ore. 469 (Ore. 2005)

Thus, while employers must consider the ADA and state laws in deciding whether to terminate an individual for a positive drug test, there are plenty of sound arguments supporting continued enforcement of drug-free workplace policies.  To the extent an employee claims to be using the drug for medicinal reasons, the employer should consult legal counsel to determine whether any legal obligation or restriction prevents normal enforcement of the policy.