Executive Summary: The dramatic inconsistency between federal and state law with regard to the use of marijuana may mean that employers with zero tolerance policies for marijuana use will face an increasing likelihood of litigation over the termination of employees who violate such policies.

Background

The recent mid-term elections in the United States appear to have been a resounding success for those advocating a change in marijuana laws in this country.  Voters in Oregon and Alaska approved initiatives legalizing the recreational use of marijuana, joining Colorado and Washington as states that have overturned prohibitions against use of the drug.  In the District of Columbia, voters approved a measure that allows individuals over 21 to possess up to two ounces of marijuana for personal use and to transfer (but not sell) one ounce to another person.  A number of cities and counties also voted to decriminalize possession of small amounts of marijuana, joining 17 states that have removed all criminal penalties for the possession and use of marijuana by adults.

The use of marijuana for medical purposes has experienced even broader approval throughout the United States.  More than 30 states have now enacted laws that permit some form of marijuana consumption for medical reasons.  The statutes vary in scope and often limit the marijuana use to specific diseases.  Some states have passed so-called "CBD-specific" marijuana laws that only allow the non-psychoactive compound in marijuana (CBD or cannabidiol) to be used for medical treatment.  Nevertheless, marijuana in various forms is now being used to treat a wide range of physical and mental impairments, including multiple sclerosis, seizure disorders, glaucoma, nausea associated with chemotherapy, anxiety disorders and chronic and/or severe pain.

Under federal law, however, the use of marijuana for any reason, medicinal or recreational, remains illegal.  Marijuana is classified as a Schedule I drug in the Controlled Substances Act (CSA), and the Supreme Court has held that marijuana use, even if authorized by state law, is nevertheless illegal under the CSA.  Further, a number of federal agencies continue to require contractors with the federal government to test for marijuana use by employees who will be performing certain safety-sensitive or security positions.  Despite an apparent sea change in attitude about marijuana use in many states, the federal government has not allowed an exception for marijuana use authorized by state law.

With such a dramatic inconsistency between federal and state law, employers with zero tolerance policies for marijuana use face an increasing likelihood of being sued by applicants and employees who are discharged or excluded from employment as a result of a positive drug test.  For example, the termination of employees who use marijuana for medical reasons may implicate disability discrimination issues and result in claims under the Americans with Disabilities Act (ADA) or similar state statutes.  Further, some of the medical marijuana statutes enacted by the states provide specific protections for employees using marijuana for medical purposes.  Finally, employees who use marijuana recreationally in states that have legalized marijuana may claim that termination for a positive drug test violates public policy and/or lawful use laws prohibiting discrimination based on an individual's lawful off-duty conduct.

Medical Marijuana and Disability Discrimination Issues

To date, courts have found that employers who take adverse action against an applicant or employee because of a positive drug test are not discriminating on the basis of a disability.  Under the ADA, a "qualified individual with a disability" does not include an individual who is currently using illegal drugs.  Given this express exclusion of individuals "currently using illegal drugs" from the protections of the Act, employers may justifiably believe they can continue to implement a zero tolerance approach to marijuana use.  There are, however, legal and practical considerations that may counsel a more cautious approach to employees using medical marijuana as a treatment for disabilities, including:

  • Has the employee disclosed an underlying disability? Although employers have no obligation to accommodate the use of marijuana under the ADA, almost all medical marijuana use is associated with conditions that could be considered disabilities under the ADA.  If an employee discloses the use of medical marijuana and also reveals the existence of an underlying disability, the employer should engage in an interactive process with the employee to determine if there is any way it can accommodate the employee's professed need for marijuana as a treatment for the disability.  For example, perhaps the employee can limit his or her marijuana use to off-duty hours, to ensure the employee will not be impaired at work.
  • Treating medical marijuana use as a course of treatment rather than misconduct. As part of the interactive process, the employer could choose to treat the employee's medical marijuana use as a course of treatment rather than misconduct.  Under regulations construing the ADA, an employer can impose prescription drug use requirements that are job-related and consistent with business necessity.  Although existing case law would suggest that employers are not required to take such action for the medical use of marijuana, an employer could voluntarily do so.  Unless the employee's use of medical marijuana presents a safety or security risk, any performance issues that arise because of marijuana use can be addressed without running afoul of the ADA.
  • Is there an alternative to the employee's continued marijuana use? If an employee with a known disability reveals his or her use of medical marijuana prior to violating an employer's drug testing policy, the employer should have a discussion with the employee to determine whether there are alternatives to the employee's continued medical marijuana use.  For example, would the employee be willing to try low-THC marijuana?  The employer may also be obligated to offer EAP counseling, leave for rehabilitation purposes, flexible scheduling to accommodate nausea and pain, or a last-chance agreement to an employee who refuses to stop using psychoactive medical marijuana.

State Law Issues

Before terminating an employee for marijuana use, employers should also consider the specific requirements of the state laws:  

  • Antidiscrimination requirements. A number of states have included antidiscrimination provisions in their medical marijuana statutes, prohibiting employers from taking adverse action against individuals merely because of their status as medical marijuana patients.  For example, New York, Connecticut, Maine and Rhode Island all have such provisions.
  • Must the employee be impaired to justify discharge?   Arizona, Minnesota and Delaware laws bar adverse action against employees unless they are impaired in the workplace.  It is clear that a positive test result showing the presence of THC (the primary metabolite in marijuana) in the employee's urine does not establish impairment.  A positive drug test does not provide any definite information as to whether an employee consumed marijuana at work or whether the employee was under the drug's influence during working hours.
  • Do state prohibitions against discrimination based on lawful off-duty activity apply?  The cases that have construed lawful off-duty activity statutes generally hold that the off-duty activity must be lawful under both state and federal laws.  Thus, these cases have found that the lawful activity statute would not prohibit the discharge of an employee who tests positive for marijuana, even in states with medical or recreational use laws.  There is no guarantee, however, that courts will reach the same conclusion in future cases.

Employers' Bottom Line

The legal treatment of marijuana use in the workplace can vary with the context of the employment, the location of the employer's facilities and the alleged statutory protection. Employers who summarily discharge employees who use marijuana may find themselves needlessly embroiled in costly litigation. Employers should closely monitor legal developments in every state where they have operations and consult counsel to determine how to implement their drug-free workplace expectations for employees.