Can you Have a No-Drug Workplace Policy if you say "Yes" to Medical Marijuana?

February 6, 2019

Author: Kate Bischoff, an Employment Attorney at tHRive Law & Consulting LLC

Are you non-compliant if you don’t allow it?

The legal status of marijuana is constantly changing, and that raises a huge question in the workplace: Is medical marijuana use protected under disability-discrimination laws?

Federal law prohibits it. More and more state laws allow it. And then there is the question of how courts interpret the laws. 

If medical marijuana is legal in your state, then your management and HR department is probably wondering how you can have a truly drug-free work environment while still remaining compliant with current law.

Complicating the issue is that, although the majority of states along with the District of Columbia have legalized marijuana for medical use — and at least nine have made its recreational use legal — marijuana remains illegal under federal law. The Controlled Substances Act still lists it as a “prohibited Schedule 1 illegal drug.”

But at least 14 states have laws that protect employees against termination for lawful, off-duty use of marijuana.

Confused? Not surprising. And it doesn’t get much clearer.

Is medical marijuana use protected under the ADA?
Currently, no. The ADA does not protect “an individual currently engaging in the illegal use of drugs” and excludes that person from its definition of an “individual with a disability.”

But legalization proponents are actively trying to make medical marijuana use protected under ADA regulations. These actions are starting at the state level with litigation, and moving towards a change to federal laws. Legislation is already in the federal House and Senate that would remove medical marijuana from the Schedule I substance list. 

That’s in the future. Right now, on the state level, employers risk litigation from employees who want their medical marijuana to not only be allowed in the workplace, but also covered by workplace insurance policies. And legislation continues to be introduced around the country that would make testing for marijuana and disciplinary actions based on a positive result illegal. Employers need to act now to ensure that their rights remain protected.

How do state laws enter into the equation?
Some states — New York, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada, to name a few — have laws that contain explicit anti-discrimination provisions that protect employees who are medical marijuana cardholders.

For example, Minnesota requires that a certified medical marijuana patient must be deemed as having a “disability” under the state’s human rights law. 

New statutes are being enacted all of the time, and new case law is being made frequently as employers grapple with how to handle such issues.

Of course, there are exceptions to state laws.
Private employers are within their rights to create and enact zero-tolerance, drug-free workplace policies. (Federal contractors are required to maintain zero-tolerance policies under the Drug-Free Workplace Act.) The law recognizes the importance of allowing employers to impose and enforce rules that ensure workplace safety. 

For example, employers with employees who operate heavy machinery or equipment (forklift operators, miners, airline pilots, etc.) or whose jobs require delicate precision (surgeons, for example) are rightly concerned about legal liability and the safety risks to other employees. No employer would condone an employee working in any capacity under the influence of alcohol, so why would they accept an employee working in an “impaired” state as a result of using marijuana.

So, even if medical marijuana is being used because of a disability – and state law requires the employer to allow it – the employer does not have to relax performance or conduct standards if that would endanger the safety of other employees or customers.

Does the Family Medical Leave Act affect medical marijuana use?
The FMLA requires that covered employers provide leave for certain employees with serious health conditions. The issue between FMLA leave and medical marijuana may be employer drug testing after an employee returns to work. Although patient qualifications for medical marijuana vary by state, an employee suffering from a serious health condition may qualify for medical marijuana use. If such an employee actually uses medical marijuana as part of his/her treatment while on FMLA leave, such use may result in a positive drug test upon his/her return to work. Can an employer terminate an employee who takes medical marijuana while on FMLA leave without fear of violating the act? 

What are management and HR supposed to do?
This is a minefield, right? There is no way employers can safely navigate through this? Fortunately, that’s not the case.

Employers can start by finding out what state law says about medical marijuana use in the workplace.

Next, assess your drug policies, specifically the part relating to medical marijuana.

Then, consider drug-testing policies. As legalization becomes more prevalent, fewer employers are testing for marijuana use. For one reason, marijuana residue is stored in human fat cells, so it’s always there. That means test results don’t give a true picture of when the drug was used.

Now, assess which of your employees is a medical marijuana cardholder and what his or her position requires? Does marijuana use pose any safety risk? Does the position require the employee to work on federal contracts?

Without a marijuana in the workplace policy, an employer risks that a drug test that results in termination could be reversed by a court. That can cost the employer back wages, punitive awards and attorney fees.

When society changes, so do laws … and workplaces. 
Many business owners and HR professionals continue to grapple with questions raised by new legislation protecting employees with disabilities as well as the use of marijuana.

For states where employee protection laws have been put in place, it’s still possible to restrict marijuana use — but care needs to be taken in crafting and enforcing a policy. In most of these states, these laws have yet to be challenged and defined through the courts. 

In the case of Coats vs. Dish Network, LLC in Colorado, the plaintiff, Brandon Coats, was a customer service employee of Dish Network who failed a random drug test and was terminated. In June of 2016, the Colorado Supreme Court ruled to affirm the termination. The decision stated that while marijuana use is “lawful” under Colorado law, it is not under federal law, and therefore the employee’s use of marijuana was not lawful. This case sets precedent in Colorado and is useful in creating drug policies in other states where protections exist.

However, in Connecticut, the state Supreme Court overturned an employee termination for marijuana use during work hours. In the case of State of Connecticut vs. Connecticut Employees Union Independent, the court determined that discipline less than termination would have been appropriate as the employer’s drug-free workplace policy did not require termination

These decisions help us understand how the courts will respond to these situations, but until we have more decisions in more states, many facets of drug use in the workplace are still open to interpretation.

What are your next steps?
The best way to create a drug-free policy that helps you be compliant with both federal and state law is to have a clear picture of your entire situation — legal, safety, employee needs, corporate culture. Your Marsh & McLennan Agency representative can work with our experts on employment law and employee communication to help you make your next move the right move.