Employers may need to revisit practices surrounding medical marijuana

Over the past decade, many U.S. states have implemented legislation permitting the use of medical marijuana, and the pace toward legalization for medical and recreational use is quickening. For employers, this is another wrinkle in an already complicated array of laws related to workplace policies on drug testing and reasonable accommodations.

Beyond setting up systems for medical consumption of marijuana, such as patient ID cards and dispensaries, most state medical marijuana laws contain clarifying provisions that speak to prohibitions on discrimination and/or the extent of an employer's obligation to provide accommodations, such as the following:

  • "No … employer … may … penalize a person solely for his or her status as a registered qualifying patient …" (Illinois)
  • "An employer may not discriminate against a person in hiring [or] termination … based upon … [a] qualifying patient's positive drug test for marijuana … unless the patient used, possessed or was impaired by marijuana on the [employment] premises … or during the hours of employment." (Arizona)
  • "Nothing in this law shall be construed to require an employer to accommodate [the] medical use of marijuana in the workplace …" (New Jersey)

Some employers follow their gut instincts about what is permissible in the context of employee drug use, and find themselves in hot water after taking employment actions without regard to the particulars of medical marijuana laws. Especially, given the evolving legal landscape, it is essential that employers understand and adhere to the various provisions, which often provide a roadmap for lawful decision-making.

Employers often encounter two types of thorny scenarios in this context: drug testing employees (or prospective employees) and considering reasonable accommodations. Because the legalized use of medical marijuana is still relatively new, guidance from the courts is merely trickling in.

See also: Cash-rich marijuana business brings unexpected tests for benefits, HR

In February, a federal district court in Arizona considered whether Walmart's termination of a cashier — a registered medical marijuana patient who tested positive — was in violation of Arizona law. The state's medical marijuana statute provides that employers are not required to allow ingestion of marijuana at work, or allow employees to work under the influence, but further provides that an employee cannot be considered under the influence of marijuana solely because they test positive for low levels of marijuana.

Bloomberg.Marijuana
A grower inspects a cannabis bud at a craft grow operation outside of Nelson, British Columbia, Canada, on Thursday, Nov. 8, 2018. In the first major industrialized country to legalize recreational pot, this remote region illustrates the opportunities and challenges facing cannabis artisans: Can they develop their industry without selling out to the Toronto "suits" who increasingly dominate the trade? Photographer: Ben Nelms/Bloomberg

In Whitmire v. Wal-Mart Stores Inc., Walmart put forth a defense under Arizona's Drug Testing of Employees Act (a separate statute) that provides employers with a "good faith belief" defense against claims. Walmart argued its determination that the cashier was impaired while working was made in good faith because she tested "so positive" for marijuana and that this good faith defense shielded it from liability under the medical marijuana statute. The court held this defense insufficient because Walmart failed to present expert testimony about the results of the employee's drug test, which it needed to do in order to show the detected levels were sufficient to cause impairment.

In March, a New Jersey appeals court considered whether the state's medical marijuana law excused a funeral home from considering a request for reasonable accommodation from an employee who tested positive for marijuana following an accident (third-party fault) while driving the company hearse. The state's law provides that nothing in the law "shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace."

In that case, Wild v. Carriage Funeral Holdings, Inc., the court held that the New Jersey statute's "refusal to require an employment accommodation" for a medical marijuana user does not mean that employers are "immunized" from obligations already imposed elsewhere. In other words, an employer's general obligation to field and respond to requests for reasonable accommodation doesn't change simply because medical marijuana is at issue. As the court noted, the medical marijuana law "neither created new employment rights nor destroyed existing employment rights." In the end, the matter boiled down to a routine reasonable accommodation analysis.

See also: NYC marijuana bill puts employers in a sticky situation

States have witnessed other recent curveballs. On April 9, the New York City Council passed a bill prohibiting employers from requiring prospective employees from submitting to drug tests that would detect THC, the active ingredient in marijuana. However, there are certain exceptions for safety-sensitive jobs and those tied to federal or state contracts. If signed into law, this rule would require New York City employers to overhaul drug-testing policies and create a bright line rule that, so long as they're familiar with the law, employers can easily follow.

In May, Illinois Governor J.B. Pritzker announced plans to legalize recreational marijuana in the state beginning in 2020. Legalization of marijuana for recreational use will present employers with additional hurdles as they attempt to implement or enforce drug-testing policies. While employers in safety-sensitive industries and those that contract with the federal government will likely always have latitude to carry out broad drug-testing programs, generally, drug-testing policies are not one-size fits all. They must be constantly re-evaluated in light of the quickly changing medical and recreational marijuana laws.

It is no longer sufficient for employers to rely on general principles of reasonable accommodation or even their own common sense regarding drug testing. Employers must assess the applicable state and local medical marijuana laws. They must also become familiar with the requirements and any relevant exceptions so that they can make informed decisions related to employee medical marijuana use.

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