A Hazy Area of the Law: The Impact of Medicinal and Recreational Marijuana Laws on Employers
Your employee recently failed a drug test, and in accordance with company policy, you terminated the employee. After notifying the employee of the company’s decision, he replied that he only smoked medicinal marijuana in the confines of his home, never violated state law, and was never under the influence of marijuana while on the job. The employee later threatens you with litigation. Should you be concerned? How does your state’s law affect your potential liability?
In recent years, states across the country (including Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia) have enacted legislation legalizing the use of marijuana for medicinal purposes. Colorado and Washington have also become the first states to legalize the possession and sale of marijuana for recreational use. Both medicinal and recreational marijuana laws raise questions regarding an employer’s lawful ability to enforce its drug policies and to take adverse action against an employee for certain off-duty conduct.
Indeed, employees in states that have legalized marijuana have increasingly brought lawsuits challenging their employer’s ability to take an adverse action based on legal behavior. Thus, there are several important questions that need to be addressed in order for employers to fully understand the new issues facing the employment arena.
Employee and Employer Rights Under State Law.
State statutes regarding the use of marijuana vary widely in terms of their protections for employers and employees. Indeed, Colorado is somewhat favorable to employers providing that employers are not required to “permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace.” The law also allows employers to have policies restricting the use of marijuana by employees. Washington law does not specifically address employers’ rights in this context, but it does provide for a cost-benefit evaluation of the law’s economic impacts on, among many other things, workplace safety.
On the other hand, Arizona, Connecticut, Rhode Island, Delaware, and Maine have laws that are more employee-friendly. In particular, the Connecticut, Maine, and Rhode Island laws create a protected status for medicinal marijuana patients and prohibit employers from taking adverse action against an employee solely due to that status. Arizona and Delaware have both adopted more explicit and impactful statutory language by prohibiting discrimination against registered and qualifying patients who test positive for marijuana components or metabolites. An exception to this rule is that an employer may act upon the results of a failed drug test if the patient used, possessed, or was impaired by marijuana on the employers’ premises or during the hours of employment.
A New Avenue for Employee Lawsuits.
This new area of the law has now created a new avenue for employees to bring lawsuits against their employers. Indeed, lawsuits across the country have been brought stemming from terminations due to marijuana use. In these lawsuits, the terminated employees have argued that they are statutorily protected under medicinal marijuana laws, and their discharge violated public policy. These cases are more prevalent in states like Colorado that have “off-duty conduct” laws (those that protect employees from being terminated for legal, off-duty conduct).
Recently, a compelling argument was asserted in Colorado based on the state’s off-duty conduct law. In Coats v. Dish Network, LLC, a Dish Network telephone operator was allegedly terminated from his job pursuant to company policy because he failed a random drug test. The former employee, who is a licensed Colorado medicinal marijuana patient, argued that he never used marijuana on the employer’s premises and was never under the influence of the drug while at work. The former employee thus argued that his termination for smoking marijuana while he was off-duty was the result of an unfair or discriminatory employment practice.
In April of 2013, the Colorado Court of Appeals upheld the firing of the employee and held that, despite the Colorado constitutional provision allowing medical marijuana use, smoking marijuana was not a “lawful activity” within the meaning of Colorado law. The Court reasoned that an activity must be legal under both federal and state law to be classified as a lawful activity. Thus, since marijuana is a Schedule I drug under the Controlled Substances Act (“CSA”), the employee was not protected by Colorado law. On January 27, 2014, the Colorado Supreme Court agreed to review the Court of Appeals’ decision, so it is possible that the determination will be modified.
While it is impossible to predict with certainty how any other court will rule on a lawsuit in this context, the Coats case has, for now, strengthened the position that an employer is permitted to terminate an employee for medicinal marijuana use, even if the employee did not use marijuana while at the worksite or during work hours and is not impaired at work. Colorado court decisions in the arenas of unemployment benefits and discrimination further illustrate favorable employer treatment.
Nevertheless, although the federal CSA still classifies marijuana as a Schedule I substance, the U.S. Department of Justice has relaxed its enforcement of the CSA’s marijuana provisions. In August of 2013, the DOJ issued a memorandum regarding marijuana enforcement, which delineates certain enforcement priorities for federal prosecutors. The DOJ hinted that individuals using small amounts of marijuana for lawful uses under these newly enacted state laws will not be an enforcement priority.
Why Should Employers that are Located in Other States Care?
Simply put, as illustrated by the legislation in states across the country, as well as the DOJ’s changing position on the enforcement of marijuana, the culture of the United States and its views on marijuana are changing. As voters in Colorado and Washington approved the ballot initiatives legalizing recreational marijuana, Massachusetts voters approved an initiative that decriminalized the possession and use of marijuana by residents with debilitating medical conditions.
Today, twenty states and the District of Columbia have enacted similar laws. Additionally, Maryland has passed laws that do not legalize the use or marijuana but allow defendants being prosecuted for the use of marijuana to introduce evidence of a medical necessity as a defense.
More recently, legislators in thirteen states have introduced bills in their respective states that, if passed, would legalize forms of medicinal marijuana. In addition, Alabama and Indiana have also introduced legislation that would provide certain defenses to the prosecution of unlawful marijuana possession.
Perhaps even more monumental is a recent ballot initiative surge in Alaska which seems likely to qualify for an August 2014 ballot vote. If the initiative passes, Alaska would join Colorado and Washington in becoming the third state to legalize the recreational use of marijuana.
How Should Employers Respond to These Increasingly Common Medicinal Marijuana (and Recreational Use) Laws?
For now, employers should look to recent judicial decisions interpreting medicinal marijuana laws to provide guidance on the inevitable litigation soon to arise regarding recreational use statutes in Colorado, Washington, and potentially Alaska.
In medicinal marijuana states that do not provide employee protections (which are most states) an employer currently stands on strong footing when enforcing its drug policies. In states that do provide employee protections, employers should review their drug policies to ensure they harmonize with corresponding state laws, including “off-duty conduct” laws.
Given that both federal and state laws govern the proper crafting, implementation, and enforcement of these drug policies, employers may desire the assistance of legal counsel in this endeavor. If so, please contact a member of the Troutman Sanders LLP Labor & Employment Section.
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