Viewpoint: Zero-Tolerance Policies May Need to Be Trashed

Employers in states that have legalized marijuana may want to consider changing their drug policy from a zero-tolerance standard to a no-impairment standard, and eliminating random drug testing as a result of state laws legalizing medical marijuana.

Presently, 23 states, the District of Columbia and Guam permit the use of marijuana for medical purposes. As more states move to legalize medical marijuana (and even the use of recreational marijuana), employers in those states are often confused about their legal obligations to those employees who use medical marijuana. Confusion is understandable given that the laws are unclear and still changing, and that there is little guidance from federal and state administrative agencies, leaving many questions unanswered. 

Federal Law Unchanged

Compounding the confusion is the fact that unlike some states, federal law has not legalized marijuana, much less does it require employers to accommodate employee use of it. Marijuana is illegal under the federal Controlled Substances Act, which provides no exception for medicinal use. Furthermore, the Americans with Disabilities Act does not require employers to accommodate medical marijuana use as a reasonable accommodation because an individual with a disability is not entitled to accommodation for the use of drugs considered unlawful under the Controlled Substances Act. Because of the federal prohibition against marijuana use, the majority of federal and state courts have held that employers may terminate employees who test positive for marijuana—even if the drug is used for medical purposes.

Explicit Protection Rare

Even in states where medicinal marijuana use is lawful, most provide no explicit protection for employees against adverse employment actions based on their medical use of the drug. However, a few states do provide some employee protections. For example, Arizona, Delaware and Minnesota prohibit employers from terminating employees because of an employee’s status as a medical marijuana cardholder or as a result of a positive drug test for marijuana.

The statutes, however, provide some carve-outs. These include situations such as one wherein an employee is impaired by marijuana while at work, or where the application of the statute would violate federal law or cause employers to lose monetary or licensing-related benefits under federal law.

Pretext?

Although employers can generally terminate employees for violating drug policies and do not have to accommodate medical marijuana use, employers should still engage in the interactive process with an employee who is using medical marijuana.

The law is changing. A Michigan employer recently settled a disability discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC) for over $40,000. In that case, the employer argued that the employee was not terminated because of her disability but due to the employee’s positive drug test, which resulted from the employee’s medical marijuana use for her disability.

The EEOC alleged that the employer’s reasoning was pretext for disability discrimination, and the court agreed that the case could move forward to trial. Other courts have similarly permitted disability discrimination cases to go forward when the employee argued that an adverse action based on the employee’s medical marijuana use was pretext for disability discrimination.

Possible Policy Changes

Despite this developing trend, for the time being, zero-tolerance drug policies are defensible and employers are not required to accommodate medical marijuana use in most states permitting medical marijuana.

Given these conflicting laws and decisions, the question then becomes: What is an employer to do when it learns that an employee is using medical marijuana or desires to seek an accommodation for it?

At the policy level, employers in states that have legalized medical marijuana may consider changing their drug policies from a zero-tolerance standard to a no-impairment standard, and get rid of random drug testing.

Under a no-impairment policy, an employee would be prohibited from being impaired by marijuana, illegal drugs or alcohol at work, and drug testing would take place only if the employer had a reasonable suspicion that an employee was under the influence of a drug.

Alternatively, as with many other policies affected by state laws, employers also may revise their zero-tolerance drug policy to expressly provide exceptions in states where medical marijuana is legal. Such policy changes would accommodate employees’ off-duty medical marijuana use, while ensuring that employees come to work unimpaired and able to do their job. Note that these options are not available to all employers, including those employers that are federal contractors or receiving federal grants or funds.

Frank Discussions

At the individual level, employers should have open and frank discussions with employees claiming to use medical marijuana for disabilities. In accommodating employees’ disabilities, employers still may prohibit the use and possession of medical marijuana on their premises and may require that employees not be impaired at work. 

Employers also may request to see employees’ medical marijuana cards or prescriptions. If practical and not unduly burdensome, employers may consider having employees use paid or unpaid leave while they need to use medical marijuana. This particularly works if the use would be for a short period of time, and an employee’s work schedule could be reasonably modified to accommodate those times when the employee will need to use medical marijuana.

This area of the law is in flux and continues to be subject to change as states consider more robust employment laws relating to medical marijuana and courts grapple with these issues. However, with marijuana still illegal under federal law, for now it looks like employees’ hopes for strong medical marijuana protections are just pipe dreams.

Sue Stott is an attorney with Perkins Coie in San Francisco. Lauren Kulpa is an attorney with Perkins Coie in Dallas.