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Recent court rulings have been more employee-friendly than past decisions
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Over half the states now have comprehensive medical marijuana laws, and with the proliferation of such laws has come a shift in how courts view workplace drug policies. That means employers may want to update their approach.
Here are some key points for employers, as identified by a panel of attorneys at the recent 11th Annual American Bar Association Labor and Employment Law Conference.
[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]
1. All Marijuana Use Is Still Illegal Under Federal Law
Marijuana remains a Schedule I controlled substance under federal law, meaning that it is considered to have no medical benefits. As a practical matter, this means that there is no such thing as a prescription for medical marijuana, said Michael Subit, an employee-side attorney with Frank Freed in Seattle. He noted, however, that doctors can work around this by recommending its use for medical reasons in states where its use is legal.
About 30 states and Washington, D.C., have legalized medical marijuana use; eight of those states have also approved recreational use. Some earlier laws explicitly stated that users didn't have employment protections, but some of the newer state laws have made things more complicated by providing employment protections to medical marijuana users—particularly under state disability laws.
Subit noted, however, that no state law provides employment protections for recreational use … at least not yet.
2. The Tide Is Turning
Historically, workers who were fired for off-duty medical marijuana use have lost lawsuits where they challenged their employer's decision. For example, in 2015, the Colorado Supreme Court found that even though a worker was permitted to use medical marijuana under state law, his termination was justified because marijuana is still illegal under federal law.
Recent judicial decisions, however, signal a shift in the way courts are approaching medicinal use. In May, a Rhode Island court sided with a job candidate who was passed over because she disclosed to her potential employer that she was a medical marijuana cardholder and would fail a pre-employment drug test. The court said the employer couldn't refuse to hire her because of her status as a medical marijuana cardholder.
In July, the Massachusetts high court held that a registered medical marijuana user who was fired for failing a drug test could proceed in state court with her disability discrimination claim. The employer in that case claimed that all marijuana use is a federal crime, and therefore, an accommodation for such use is unreasonable. But the court disagreed and held that, under the state's disability discrimination law, employees have the right to seek a reasonable accommodation for medical marijuana use.
The employer in that case didn't argue federal pre-emption, but in August, a federal district court in Connecticut rejected an employer's federal pre-emption argument. The court said that the federal Controlled Substances Act doesn't regulate employment and therefore didn't make it illegal to employ a marijuana user.
"These recent cases might represent the trend moving forward," Subit said.
3. Testing Is Lacking
Legalization efforts at the state level may not change the implications of medical marijuana use in safety-sensitive industries or those that require drug testing under federal law, said Ellen Kelman, a union attorney with the Kelman Buescher Firm in Denver.
For jobs that aren't safety sensitive or don't involve federal regulations, arbitrators who are asked to resolve labor disputes are often more concerned with the impact a worker's behavior has on the job—rather than the legality of off-duty use, she said.
Unlike for alcohol, however, there isn't a widely accepted method of testing marijuana impairment, and therefore, existing testing methods may be unreliable. "Decades of illegality have hindered scientific understanding about marijuana," Kelman said. "You generally have no clue if your employees are impaired regardless of what their test shows."
Because it is difficult to detect impairment, arbitrators usually look at other types of evidence in the workplace, such as accidents and poor performance.
4. On-the-Job Use Isn't Allowed
Employers may want to review their drug-testing policies and consider their reasons for testing. In light of recent court decisions finding that registered medical marijuana users are protected under state disability laws, employers should also understand the importance of engaging in an interactive process and reviewing reasonable accommodation requests.
However, it's important for employers to note that even in states where lawful off-duty conduct or medical marijuana cardholder status are potentially protected, getting high on the job is never shielded.
Marijuana Laws By State
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