Quirky Question # 178:

We are a large company with operations in several states. Three of the states in which we operate permit medical marijuana use: California, Oregon, and Washington. One of our factory employees, working in an Oregon location, recently requested that we accommodate his medicinal use of marijuana. The employee claims that even if state medical marijuana law and discrimination law does not require accommodation, accommodation is required under the Americans with Disabilities Act because the marijuana is treatment for a disabling medical condition. Is this true? We have not been accommodating any employee use of medical marijuana. Are we going to be in trouble under the ADA?

Sarabeth’s Analysis:

Your questions provide a great example of the sometimes conflicting intersection between state and federal employment law. As a general matter, it is important to remember that conduct permissible under state law may not permissible under federal law, or vice versa. Thankfully here, however, the federal ADA appears to agree with the California, Oregon, and Washington state law on medical marijuana: An employer does not need to accommodate an employee’s use of medical marijuana.

It appears you are familiar with, and conform your practices to, California, Oregon, and Washington state law on employee medical marijuana use. The California Supreme Court was the first to hold that state employers are not required to accommodate employee medical marijuana use under the California Fair Employment and Housing Act (which prohibits discrimination on the basis of disability). We previously wrote about that decision, Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008), in Quirky Question #21. (All past Quirky Questions are accessible by using the search features above.)

The Oregon Supreme Court held similarly last year, in Emerald Steel Fabricators v. Bureau of Labor & Industry, 230 P.3d 518 (Or. 2010), deciding that the Oregon discrimination statute did not require employer accommodation of medical marijuana use. Most recently, in Roe v. TeleTech Customer Care Management (Colorado) L.L.C., No. 83768-6 (June 10, 2011), the Washington Supreme Court held that Washington public policy and the state medical marijuana statute do not impose on employers the duty to accommodate medical marijuana use.

Turning to your ADA question, although some commentators have speculated that an employee who is terminated due to medical marijuana use might be able to pursue an ADA claim (see, e.g., 26 Hofstra Lab. & Emp. L.J. 619, 633 (2008)), courts that have addressed the issue have held otherwise. These courts conclude that because the ADA does not cover employees who use illegal drugs, and because marijuana remains illegal under federal law, the ADA does not protect medical marijuana users. This is so even though the ADA otherwise protects employees who use controlled substances under the supervision of a medical professional as authorized by federal law. See 42 U.S.C. § 12210(d).

Because the Controlled Substances Act does not allow medicinal use of marijuana, however, courts have concluded that a medical professional cannot legally, as a matter of federal law, supervise medical marijuana use so as to bring an employee under the ADA’s protection. See, e.g., James v. City of Costa Mesa, 2010 U.S. Dist. LEXIS 53009, at *8-11 (C.D. Cal. Apr. 30, 2010); Barber v. Gonzales, 2005 U.S. Dist. LEXIS 37411, at *2-5 (E.D. Wash. July 1, 2005); Johnson v. Columbia Falls Aluminum Co., 2009 WL 865308, at *4 (Mont. Mar. 31, 2009).

For employers, then, even in states permitting medical marijuana use (and even in such states where the accommodation issue has not yet been definitively decided under state discrimination laws), employers may remain confident that the federal ADA does not require accommodation of medical marijuana use, whether the employee uses marijuana on the job site or off the job site. Thus, for example, an employer generally may condition an offer of employment on the results of a drug test, as a legitimate business interest (although keep in mind that different states regulate employee drug testing with varying degrees of stringency). Of course, if an employer requires conditional drug testing and rejects job applicants who test positive for illegal drug use, it is important to apply that rule fairly and evenly to the applicant pool. Moreover, applicants should be given notice of the employer’s testing policy, including the consequences of a positive test result or of refusing to take the test.

State laws vary on drug and alcohol testing, and therefore you should be sure to comply with applicable law in each of the states in which you operate. For example, in Minnesota, where I practice, if a job offer is withdrawn, the employer must inform the job applicant of the reason for its action. See Minn. Stat. § 181.951, subd. 2.

The number of patients authorized for medicinal marijuana use is growing. Over one-quarter of states have enacted laws approving the use of medical marijuana. In 2007, national estimates placed medical marijuana patient totals at approximately 300,000. Stephanie Armour, Employers grapple with medical marijuana use, USA Today, April 18, 2007, http://www.usatoday.com/money/workplace/2007-04-16-medical-marijuana-usat_N.htm. In 2005, there were over 100,000 patients using medical marijuana in California alone. Dean E. Murphy, California Reins In Clinics Using Marijuana for Medical Purposes, N.Y. Times, June 15, 2005, http://www.nytimes.com/2005/06/15/national/15marijuana.html. Roughly the same amount of users are currently registered in Colorado. Colo. Dep’t of Pub. Health & Env’t, http://www.cdphe.state.co.us/hs/medicalmarijuana/statistics.html.

In view of these numbers, while employers may remain confident that medical marijuana accommodation is not required under federal law, employers should expect medical marijuana issues to continue to be raised by their employees and job applicants, with increasing frequency. Employers should reflect on their position on medical marijuana, draft and utilize reasoned, comprehensive policies, and fairly and effectively implement those policies with their workforces.