What are employers’ duties regarding marijuana policies in the workplace under both federal and state laws? To answer this complex question, this article will outline current federal directives regarding marijuana, summarize how different state laws mandate accommodation and provide tips for crafting your own workplace policy.
Federal Law
When analyzing cannabis use accommodation, employers should start with the premise in mind that marijuana remains illegal under federal law. The federal government considers Schedule I controlled substances to have a high potential for abuse and no medical use. (For perspective, heroin and ecstasy are also classified as Schedule I substances.) Therefore, when an employer receives a contract or grant from a federal agency, or operates under federal regulations, it must maintain a zero-tolerance policy for any use and include testing as part of its policy.
As recently as August 2016, the DEA restated its position that marijuana is a Schedule I substance, based on the Controlled Substances Act of 1970.
The federal government also maintains its position that federal contractors must provide drug-free workplaces as a precondition to receiving a contract or grant from a federal agency, a stance that was first outlined in the Controlled Substances Act of 1988.
Industries where employers commonly must implement zero-tolerance policies include: transportation, construction, athletics, law enforcement, hospitality and health care.
The federal Americans with Disabilities Act (ADA) mandates that employers must reasonably accommodate disabled employees, absent a showing of hardship by the employer. However, the ADA does not require an employer to accommodate the use of drugs banned by federal law. Therefore, under federal law, employers need not accommodate employees’ use of marijuana.
Enforcement
In reality, whether or not the federal government enforces these policies changes with each presidential administration. For example, former Attorney General Eric Holder issued a statement that the Obama Administration did not intend to vigorously enforce the law except under certain circumstances. Under President Barack Obama, the Cole and Ogden memorandums stated that the Department of Justice would not interfere with businesses and individuals operating legally under state cannabis laws, as long as organized crime and sales to minors were not implicated.
In contrast, though President Donald Trump indicates a willingness to defer to states on this issue, Attorney General Jeff Sessions and Secretary of Health and Human Services Tom Price suggest that the Trump Administration will be less tolerant of marijuana use. In light of Sessions’ comments that, “Good people don’t smoke marijuana” and that marijuana “… is already causing a disturbance in the states that have made it legal,” a change in federal enforcement may be imminent.
State Law
With federal policy in mind, the issue of state legalization and decriminalization creates questions for employers as 28 states and Washington, D.C. have now legalized marijuana use medically, recreationally or both. This state legislation conflicts with federal law. The Supreme Court addressed the conflict in the 2005 case, Gonzales v. Raich, ruling that the commerce clause gives Congress authority to prohibit the local growth and use of marijuana, despite state law to the contrary.
Under Gonzales, it is clear that state laws legalizing marijuana use are in direct conflict with federal law to the contrary, which raises questions for employers struggling to determine where their responsibilities to their workers lie.
Of the 28 states that have legalized medical marijuana, 10 require employers to accommodate employees who are registered medical marijuana users. In these states, employers may not take adverse action against employees because of their participation in a medical marijuana program.
In states with the most modest accommodation laws — Connecticut, Illinois, Maine, Pennsylvania and Rhode Island — employers may not take adverse action against an employee’s status as a qualifying patient or registered cardholder, but do not have to accommodate a positive drug test. These states also allow employers to discipline employees who are under the influence of medical marijuana at work.
In states with more liberal accommodation laws — such as Arizona, Delaware and Minnesota — an employer cannot take adverse action against an employee because of their status as a medical marijuana cardholder or because of a positive drug test, unless the employee used, possessed or was impaired during work hours. This means an employer may not refuse to hire an applicant because they failed a drug test if the employee is a registered cardholder. The difficult question in these states becomes determining whether the employee is “under the influence” while on the job.
Other states, including Nevada and New York, have gone so far as to clearly articulate that medical marijuana users are entitled to accommodation and the protection of state disability law. Interestingly, New Hampshire has even upheld the use of medical marijuana in the workplace with the permission of an employer.
In contrast to those examples, a majority of states’ medical marijuana laws do not require employees to accommodate for their employee’s use. In fact, the Oregon, Washington and Colorado Supreme Courts have held that those states’ medical marijuana statutes are preempted by federal law and employers need not accommodate employees in violation of zero-tolerance policies. In these states, employers with zero-tolerance policies can refuse to hire or can terminate employees who fail a drug test for marijuana with or without medical authorization.
Bud and Bloom in Santa Ana, California.
Takeaway for Employers
As a starting point, any employer operating under the umbrella of federal funding or regulation must enforce a zero-tolerance policy. Employers outside of this umbrella and operating in states that have legalized medical marijuana, must next look to whether their state mandates accommodation. Currently, a majority of states that have legalized medical marijuana do not require employers to look past positive drug tests that are in violation of zero-tolerance drug policies. These states allow employers to enforce zero-tolerance policies per federal standards.
When an employer does accommodate off-duty medical marijuana use, they should treat the accommodation like that of any other medication. This means the employer may still prohibit the using employee from working while impaired by the medication. Additionally, accommodating employers should make supervisors aware that employees using medical marijuana may trigger obligations under the ADA. Finally, employers should monitor federal research outcomes and ensure their workplace policies are up to date with federal and state legislation.
Jessica Lewicki is an associate in the Portland office of Williams Kastner Greene & Markley (www.williamskastner.com). Her practice focuses on commercial and civil litigation defense, with an emphasis on premises liability, retail, transportation, product liability, employment claims and other general liability matters. Williams Kastner publications should not be construed as legal advice.
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