For years, the landscape surrounding marijuana and its uses, whether it be for medical use or recreational use, has been ever-changing. Since Colorado became the first state to legalize marijuana for medical use in 2000, and ultimately leading the charge in legalizing marijuana for recreational use in 2012, a total of 33 states and Washington D.C. have followed suit and have legalized marijuana for medical use and 11 states and Washington D.C. have legalized marijuana for recreational use. With the growing legalization of marijuana, the list of drug testing and marijuana laws as they relate to employment continues to grow as well. While it is not a trend currently, some states have enacted laws that prohibit employers from drug testing new-hires or refusing to hire applicants based on a failed post-offer drug test (with the exception of safety sensitive jobs.) This article provides some considerations for employers that may be wading through the deep waters of drug testing and marijuana laws and their impact on employment in 2020.
There are a few commonalities for employers between state statutes that have been enacted for the use of medical marijuana and the federal law prohibiting the use of marijuana. Primarily, none of the laws require employers to allow drug use in the workplace or tolerate employees who present a risk to themselves, other employees, or the organization by reporting to work under the influence. In fact, multiple courts have upheld employer rights. The United States Court of Appeals for the Sixth Circuit determined that “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.” The United States Court of Appeals for the Ninth Circuit clarified that “the ADAAA (Americans with Disabilities Act and its Amendments Act) does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”
However, as medical marijuana becomes more prevalent, states are beginning to pass laws that prohibit employers from discriminating against an employee based solely on the fact that he or she is an authorized medical marijuana patient, or are a caregiver to another medical marijuana patient. Further, the state of Nevada passed a law as of January 1, 2020, that expressly prohibits post-offer drug testing, specifically for marijuana. New York City has also passed a similar law, which also bans employers from testing for marijuana. Both laws do not come without exceptions as organizations may still screen and refuse to hire applicants for safety-sensitive jobs to include: drivers, firefighters, and emergency medical technicians (EMTs) who test positive for marijuana. In addition to specific safety-sensitive jobs, any jobs that are regulated by federal programs that require drug tests are also included as exceptions to the rule.
The laws mentioned above may trump an organization’s “zero-tolerance” policy, if there is one in place. If an organization relaxes their policy on zero-tolerance for drugs and an employee tests positive for marijuana, the employer may then begin a process of verifying the employee’s participation in a medical marijuana program, evaluating the employment situation and determining accommodations, if needed, based on the nature of the job and the safety sensitivities of that job. Even though the ADAAA does not require an accommodation based on marijuana use, it does require accommodations related to a covered disability. In some cases, a reasonable accommodation may not be available, however employers should be able to demonstrate due diligence when considering an accommodation for a medical marijuana patient. Again, this does not mean that organizations have to tolerate any on-the-job use, but working with the employee by offering him or her time off, altering shifts, etc., would allow the employee to utilize medical marijuana off the clock. Different states have different stances on what is “reasonable” when it comes to determining how to proceed with an employee who is a medical marijuana patient, so it is important to closely monitor state laws regarding medical marijuana and the protections that are given to both the employer and/or the employee.
In order to better evaluate whether a reasonable accommodation may be made for certain positions, employers are encouraged to review the written job descriptions in their organizations to determine which jobs are safety-sensitive jobs. Job descriptions should be updated and clearly state the safety-sensitivity. Employers are also encouraged to review their employee handbook to ensure it is up-to-date with prohibitions against the use and possession of medical marijuana during working hours and at the workplace as well as defining testing procedures for an employee that is suspected to be under the influence of marijuana.
Employers are encouraged to recognize the importance of documentation if an employee is disciplined or terminated due to a violation of a drug policy. The documentation should clearly state the decision and the rationale for the decision and expectations from that point forward. The documentation should also directly reference the employee handbook policies that the employee violated and should also include the employee handbook acknowledgement form that shows the employee was provided the most up-to-date copy.
It’s important to note that federal law does not necessarily hold more weight than state laws, however, legal decisions regarding the federal law prohibiting the use of marijuana are still being upheld in some cases.
In the case of Coats vs. Dish Network, the federal law was upheld even though Colorado is a state that has legalized both medical and recreational marijuana. In the 2010 case, the employee, Coats, was given a random drug test that tested positive for marijuana. Dish Network had a zero-tolerance policy for drug use and terminated Coats. He then sued Dish Network; however, the case was dismissed citing the fact that even if marijuana is legal under Colorado law, it is not a legal activity. In June of 2015, the Colorado Supreme Court upheld the ruling of the trial court and ruled that an employer is still permitted to terminate an employee who engages in activity that violates federal law. Therefore, precedence has been set that drug testing and subsequent termination for positive results is still legal. (Marijuana in the Workplace: A Hazy Issue for Employers, Rachel E. A. Atterberry, September 18, 2015)
Conflicts between federal and state laws are not new and, for many employers, the guiding principle has been to “err” with the law that provides the most protection for the employee. In the case of medical marijuana, there is a tension between the protection of an employee and the protection of the organizations employees as a whole while maintaining productivity in the organization.
Due to the ever-changing landscape of laws surrounding recreational marijuana use and medical marijuana use in the United States, it is critical that employers stay abreast of the changes in federal and state laws and review their organizations drug policies in light of those changes. Ultimately, whatever policy an organization determines is in the best interest of both the organization and its employees, employers are encouraged to realize the importance of providing training for their managers so that they are able to be proactive in either seeking a reasonable accommodation for an employee who is a medical marijuana patient, or utilizing the organizations drug testing policy to test an employee who is suspected to be under the influence of marijuana in the workplace.
For additional information on drug testing and marijuana laws and their impact on employment, please contact us at www.newfocushr.com.
Written By: Patrick McKenna, SHRM-CP