Marijuana in the Workplace: A Hazy Issue for Employers

With all the changes to state laws now permitting recreational and medical marijuana use, HR professionals are understandably feeling dazed and confused. There are many questions:

• Is an employer required to accommodate the use of medical marijuana?
• Must an employer forgive an employee's recreational use of marijuana over the weekend?
• What if the employee is a truck driver? An elementary school teacher?
• What if the employee fails a drug test?

Twenty-three states and the District of Columbia have decriminalized medical marijuana. These laws vary greatly in their criteria and implementation. In addition, some states, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada and New York, require accommodations for registered medical marijuana users. In those states, an employer cannot take an adverse action against an employee simply because of his or her participation in a recognized medical marijuana program.

Additionally, voters in Alaska, Colorado, Oregon and Washington and the District of Columbia have all passed initiatives legalizing the sale and distribution of recreational marijuana for adults. Importantly, however, marijuana is still illegal under federal law.

Medical Marijuana

Employers with employees who use medical marijuana will have to do some studying into the employee's job requirements. In those states where an accommodation is required, an employer needs to carefully evaluate the job before taking any action due to the use of medical marijuana.

For instance, if an employee tests positive for marijuana, the employer should ask the worker to verify that he or she is a participant in a recognized medical marijuana program. Then the employer conducts a further evaluation of the employment situation. In the states requiring accommodation, the employer should look at the specific demands of the job, as well as any competing regulations that may apply, in considering an employee’s use of medical marijuana. For instance, the Department of Transportation’s regulations do not permit the use of marijuana.

Generally speaking, an employer does not have to allow for an employee to be actively under the influence while at work. But an accommodation may be necessary, depending on the nature of the job and the safety and other sensitivities of the position.

Once an employer is provided notification that an employee is a medical marijuana user, that employer needs to be especially careful how it uses that information and how far it goes in asking for more. This is because the employer now is likely on notice that the employee is potentially disabled under the Americans with Disabilities Act (ADA) or similar state statutes and/or has a serious health condition under the Family and Medical Leave Act. While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability (for example, glaucoma), and affords certain protections to employees and applicants with disabilities, such as the confidentiality of medical information.

That said, courts so far have not supported the discrimination claims of medical marijuana users. In one of the most publicized cases, the Colorado Supreme Court recently heard the case of Coats v. Dish Network, in which an employee of Dish Network sued under Colorado’s lawful off-duty activities law after being fired for failing a random drug test despite having a medical marijuana license. In a unanimous decision, the court found in favor of the company based on the fact that federal law still classifies marijuana as a controlled substance. Many in the medical marijuana community felt that the outcome of Coats highlights the need for further reforms concerning the use of medical marijuana and protections for those registered users.

Employers in states allowing for the use of medical marijuana should familiarize themselves with the relevant statutes and, in particular, determine whether their state statute requires that accommodations be made. Even if the statute itself does not require an accommodation, employers may want to consider voluntary accommodations for the use of medical marijuana, particularly in the context of zero-tolerance drug test policies. Despite the recent changes in the law, however, employers can rest assured that they need not tolerate an employee being clearly under the influence while at work.

Recreational Marijuana

Do employers in states that have authorized recreational marijuana use have to allow for the use of marijuana apart from any participation in a recognized medical marijuana program?

Fortunately for employers, the marijuana laws in Alaska, Colorado and the District of Columbia provide express protections, indicating that employers are not required to permit or accommodate the use, sale, possession, transfer or the like of marijuana in the workplace. The laws in Oregon and Washington, however, are silent as to the impact of recreational marijuana in the workplace.

Nonetheless, as long as an employer has a clearly communicated and enforced policy prohibiting the use and possession of marijuana and other controlled substances while at work, that employer can likely legally terminate an employee for his or her use of recreational marijuana because use is still illegal under federal law. While the use of recreational marijuana and its impact on the workplace is still relatively new legal territory, those courts that have addressed such circumstances have thus far upheld employer termination decisions.

Rachel E.A. Atterberry is an attorney with Freeborn & Peters in Chicago.