But I Have a Prescription!

Despite this trend, the use and possession of marijuana is still a violation of federal law. In 2005, the United States Supreme Court held that the federal government had the right to regulate marijuana as it saw fit regardless of conflicting state laws permitting its use. Raich v. Gonzales, 545 U.S. 1 (2005). Nonetheless, states have continued their medical marijuana programs, and employers are frequently required to deal with the ramifications of those programs.

One source estimates that there are 300,000 registered medical marijuana users in the United States, and the numbers are rapidly increasing. At the same time, approximately 84% of employers conduct pre-employment drug screening, 73% conduct suspicion-based testing, 58% conduct post-accident testing and 39% conduct random drug testing.

When an employee with a valid state prescription for the use of marijuana tests positive, employers are faced with a difficult dilemma. This is especially true since an individual can test positive for marijuana use without being under the influence of the drug at the time of the test.

Legal Requirements

Two laws come into play in cases of employment discipline for medical marijuana use ' the Americans with Disabilities Act (ADA) and the law of the specific state where the employee works. While the developing trend in ADA law holds that an employer's discipline for the use of medical marijuana is not a violation, the law is still a bit murky in this area. Moreover, regardless of federal law, state laws may provide additional protections to employees under these circumstances.

Federal Laws

Under the ADA, an employer may not discriminate against a “qualified individual with a disability” for obtaining treatment for that disability or for the side effects of that treatment. However, the ADA expressly provides that an employer may: 1) prohibit the “illegal use of drugs” at the workplace by all employees; and 2) prohibit current “illegal use of drugs” by employees. The term “illegal use of drugs” means the use of drugs, the possession of which is unlawful under the federal Controlled Substances Act. The term thus includes the use of marijuana for any purpose. For that reason, the ADA should not act as a bar to an employer's discipline of an employee who is using medical marijuana.

Nonetheless, if the medical condition for which marijuana has been prescribed is a disability, a claimant can still be a “qualified individual with a disability” so long as he or she can show that an employment decision was made “on the basis of” such disability. For an employment decision citing current marijuana use, this employee would need to show one of the following: 1) His or her underlying disability was a motivating factor in the employer's decision even if the employer was also motivated by the employee's “illegal use of drugs”; or 2) His or her “illegal use of drugs” was a mere pretext for discrimination on the basis of his underlying disability

Aside from the ADA, some federal laws require employer testing of employees. The prohibition of marijuana use for any purpose continues to be a mandate of the Drug-Free Workplace Act of 1988 for federal contractors. Additionally, industries regulated by the Department of Defense and Nuclear Regulatory Commission have federally mandated requirements to maintain a drug-free workplace.

The Department of Transportation (DOT) has similar regulations and has specifically determined that transportation workers may not use marijuana even in states where its use is legal. Every employer also has an OSHA-mandated duty to provide a safe workplace. Permitting an employee to work when there is reason to believe that his or her judgment is impaired by the use of marijuana may violate that duty.

State Laws

Irrespective of federal law, state laws provide employees varying levels of protection. For example, the supreme courts of California and Oregon have held that their state laws merely protect medical marijuana users from state prosecution, not from employment discrimination. A bill to add employment protection to the California law was passed in 2009, but was vetoed by the governor.

However, other states have more protections. In Colorado, for example, the right to use medical marijuana is enshrined in the state's constitution. Further, Colorado, like several other states, has a “Lawful Off-Duty Statute” that prohibits employers from disciplining employees for off-duty legal conduct. Michigan, home of the Battle Creek Wal-Mart, prohibits any business from denying “any right or privilege” from a medical marijuana user. However, even in states that provide some level of employee protection for medical marijuana use, there is no protection for the employee who shows up to work under the influence.

Recommendations

Employers can take several steps to minimize the risk of an employee lawsuit for negative employment actions related to the use of medical marijuana while maintaining a drug testing policy.

• Make sure the drug testing policy clearly prohibits the use of any drugs and other controlled substances that are illegal under federal or state law.
• When faced with an employee believed to be under the influence of a drug, document the facts that demonstrate the suspicion. It is far easier to defend a termination based on working under the influence than it is for a positive test.
• If you are in a federally regulated industry such as transportation, make reference to that fact in your policies and in any disciplinary or other negative employment actions you take. Federal law will trump any stronger state protections.

If you are not in a federally regulated industry, consider whether the potential state law exposure is worth the benefits derived from a random drug-testing policy. You may be better off instituting a policy that allows for accommodation of medical marijuana users who have valid prescriptions and who will not be under the influence at work.

Jeffrey Shapiro is a Partner at the Richmond, VA, office of McGuire Woods. He advises clients on a wide range of employment-related issues, including wrongful discharge, employment discrimination, and virtually all aspects of the employer-employee relationship. Eric Martin is an associate at the same office. His practice focuses on traditional labor and employment law. He can be reached at [email protected]. Phone: 804-775-1129.

In March 2010, national media attention focused on a Wal-Mart in Battle Creek, MI, after it fired a 29-year-old man who tested positive for marijuana use following a random drug test. What caught the attention of the media ' and employment lawyers ' was the fact that the employee was battling cancer and had a prescription for the use of medical marijuana. Media attention was mostly unfavorable toward the employer, and a lawsuit is expected.

A Difficult Question

Employers are increasingly facing the difficult question of how to handle employees who have valid state prescriptions for the use of medical marijuana. Currently, 14 states permit the use of medical marijuana: Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Several other states are considering similar laws, and this November, citizens of California will have the opportunity to make recreational use of marijuana legal in that state.

Despite this trend, the use and possession of marijuana is still a violation of federal law. In 2005, the United States Supreme Court held that the federal government had the right to regulate marijuana as it saw fit regardless of conflicting state laws permitting its use. Raich v. Gonzales , 545 U.S. 1 (2005). Nonetheless, states have continued their medical marijuana programs, and employers are frequently required to deal with the ramifications of those programs.

One source estimates that there are 300,000 registered medical marijuana users in the United States, and the numbers are rapidly increasing. At the same time, approximately 84% of employers conduct pre-employment drug screening, 73% conduct suspicion-based testing, 58% conduct post-accident testing and 39% conduct random drug testing.

When an employee with a valid state prescription for the use of marijuana tests positive, employers are faced with a difficult dilemma. This is especially true since an individual can test positive for marijuana use without being under the influence of the drug at the time of the test.

Legal Requirements

Two laws come into play in cases of employment discipline for medical marijuana use ' the Americans with Disabilities Act (ADA) and the law of the specific state where the employee works. While the developing trend in ADA law holds that an employer's discipline for the use of medical marijuana is not a violation, the law is still a bit murky in this area. Moreover, regardless of federal law, state laws may provide additional protections to employees under these circumstances.

Federal Laws

Under the ADA, an employer may not discriminate against a “qualified individual with a disability” for obtaining treatment for that disability or for the side effects of that treatment. However, the ADA expressly provides that an employer may: 1) prohibit the “illegal use of drugs” at the workplace by all employees; and 2) prohibit current “illegal use of drugs” by employees. The term “illegal use of drugs” means the use of drugs, the possession of which is unlawful under the federal Controlled Substances Act. The term thus includes the use of marijuana for any purpose. For that reason, the ADA should not act as a bar to an employer's discipline of an employee who is using medical marijuana.

Nonetheless, if the medical condition for which marijuana has been prescribed is a disability, a claimant can still be a “qualified individual with a disability” so long as he or she can show that an employment decision was made “on the basis of” such disability. For an employment decision citing current marijuana use, this employee would need to show one of the following: 1) His or her underlying disability was a motivating factor in the employer's decision even if the employer was also motivated by the employee's “illegal use of drugs”; or 2) His or her “illegal use of drugs” was a mere pretext for discrimination on the basis of his underlying disability

Aside from the ADA, some federal laws require employer testing of employees. The prohibition of marijuana use for any purpose continues to be a mandate of the Drug-Free Workplace Act of 1988 for federal contractors. Additionally, industries regulated by the Department of Defense and Nuclear Regulatory Commission have federally mandated requirements to maintain a drug-free workplace.

The Department of Transportation (DOT) has similar regulations and has specifically determined that transportation workers may not use marijuana even in states where its use is legal. Every employer also has an OSHA-mandated duty to provide a safe workplace. Permitting an employee to work when there is reason to believe that his or her judgment is impaired by the use of marijuana may violate that duty.

State Laws

Irrespective of federal law, state laws provide employees varying levels of protection. For example, the supreme courts of California and Oregon have held that their state laws merely protect medical marijuana users from state prosecution, not from employment discrimination. A bill to add employment protection to the California law was passed in 2009, but was vetoed by the governor.

However, other states have more protections. In Colorado, for example, the right to use medical marijuana is enshrined in the state's constitution. Further, Colorado, like several other states, has a “Lawful Off-Duty Statute” that prohibits employers from disciplining employees for off-duty legal conduct. Michigan, home of the Battle Creek Wal-Mart, prohibits any business from denying “any right or privilege” from a medical marijuana user. However, even in states that provide some level of employee protection for medical marijuana use, there is no protection for the employee who shows up to work under the influence.

Recommendations

Employers can take several steps to minimize the risk of an employee lawsuit for negative employment actions related to the use of medical marijuana while maintaining a drug testing policy.

• Make sure the drug testing policy clearly prohibits the use of any drugs and other controlled substances that are illegal under federal or state law.
• When faced with an employee believed to be under the influence of a drug, document the facts that demonstrate the suspicion. It is far easier to defend a termination based on working under the influence than it is for a positive test.
• If you are in a federally regulated industry such as transportation, make reference to that fact in your policies and in any disciplinary or other negative employment actions you take. Federal law will trump any stronger state protections.

If you are not in a federally regulated industry, consider whether the potential state law exposure is worth the benefits derived from a random drug-testing policy. You may be better off instituting a policy that allows for accommodation of medical marijuana users who have valid prescriptions and who will not be under the influence at work.

Jeffrey Shapiro is a Partner at the Richmond, VA, office of McGuire Woods. He advises clients on a wide range of employment-related issues, including wrongful discharge, employment discrimination, and virtually all aspects of the employer-employee relationship. Eric Martin is an associate at the same office. His practice focuses on traditional labor and employment law. He can be reached at [email protected]. Phone: 804-775-1129.