The Colorado Supreme Court last week heard arguments in a case brought by Brandon Coates, a quadriplegic who uses marijuana to ease muscle spasms, against Dish Network, his employer, for firing him after he failed a random drug test. Coates said he never used marijuana at work and was never under its influence while on the job. Dish has a zero-tolerance policy against employees’ using illegal drugs. At issue is whether Colorado’s laws legalizing medical marijuana require employers to tolerate employee use of the plant, or if federal law, which classifies marijuana as an illegal controlled substance, allows them to enforce strict drug-testing policies. The patchwork of state marijuana laws across the country, and their conflict with federal law, creates an uncertain environment for employers. On one hand, their policies might violate workers’ rights; on the other, they may be held liable for the actions of impaired employees. This area of law is evolving, and the outcome of the Colorado case will be examined by other state courts deciding similar issues, but a review of the applicable laws as they now stand can help employers craft best practices in addressing employee marijuana use.
State marijuana laws are similar, but not uniform
Twenty-three states across the U.S. have passed medical marijuana laws, including four in our practice area – Connecticut, Massachusetts, New Hampshire, Rhode Island and recently New York – which remove state-level criminal penalties for possession and use of medical marijuana and provide a means of access to the drug. Although sharing the same basic framework, the specific laws implementing the sale and use of medical marijuana differ among these states. A brief overview of some of their similarities and differences highlights the difficulty in crafting uniform recommendations to employers regarding their employees’ potential use of medical marijuana.
Who is permitted to use and possess medical marijuana?
Currently, only qualified patients, primary caregivers, and licensed dispensaries or compassion centers can possess, dispense, or use medical marijuana. The permitted amount of marijuana (called “cannabis” in New Hampshire) varies by state. In Rhode Island, caregivers are permitted to possess 12 marijuana plants for each of their patients, and patients may possess 2.5 ounces for their own use. Massachusetts allows a six-day supply for personal use, and New Hampshire, where regulations have not yet been published, allows only two ounces of usable cannabis within a 10-day period. Most states require that a patient (1) be diagnosed with a debilitating disease, such as glaucoma, Crohn’s disease, or epilepsy, by a person licensed by the state to prescribe drugs, and (2) have a registry identification card issued to them by their state’s Department of Health. Connecticut and Massachusetts also require the prescribing physician to have a bona fide doctor-patient relationship with the patient. In none of the states are employees expressly given the right to possess marijuana at their workplace.
What limits do the laws explicitly impose on employers?
There are significant differences in the language of states’ medical marijuana laws regarding employees’ civil rights. Massachusetts law specifically exempts employers from having to make “any accommodations for any onsite use of medical marijuana in any place of employment,” and New Hampshire law explicitly states that it shall “in no way limit an employer’s ability to discipline an employee for ingesting cannabis in the workplace or … working while under [its] influence.” The statutes of these states provide some shielding for employers who discharge employees who test positive for marijuana, but the law is still developing.
By contrast, the statutes of Rhode Island and Connecticut provide some protections for employees. Rhode Island’s law prohibits employers from refusing to employ an applicant or from penalizing an employee, if either action was due to the person’s holding a registry identification card, and Connecticut, with some exceptions, also prohibits discrimination by employers toward medical-marijuana users. Rhode Island goes a step further by allowing drug testing of current employees only if there are specific, documented indications that the employee might be under the influence of a controlled substance that is impairing job performance. Furthermore, Rhode Island recognizes the validity of out-of-state medical marijuana identification cards, as does New Hampshire, but with specific limitations.
Notwithstanding the statutes’ language, it is not certain how state courts will adjudicate specific claims as employers and employees grapple with the unsettled issues that will arise regarding marijuana use. The termination of employees owing to medical marijuana use on their own time might be interpreted by courts as a violation of public policy or of the employees’ civil rights, especially if such use does not impair their work performance.
What areas are settled law?
Not all situations lead to uncertain outcomes. State medical marijuana laws obviously conflict with federal drug laws and the Americans with Disabilities Act (ADA). Marijuana is currently listed as an “illegal controlled substance” under the federal Controlled Substances Act, which makes it unequivocally illegal under federal law. Because the ADA defines illegal use of drugs as “possession, or distribution of drugs when doing so is unlawful under the federal Controlled Substances Act,” a patient who uses medical marijuana will not be considered “a qualified individual” within the ADA. Courts in all jurisdictions that have considered the issue have unanimously held that the ADA does not protect medical marijuana users or provide them with a right to an accommodation for medical marijuana use in the workplace. Although state laws like Rhode Island’s require employers to provide reasonable accommodations for its employees with disabilities, marijuana remains an illegal drug under federal law and therefore the ADA will not provide any protection for workplace use.
Another major concern involving medical marijuana is safety in the workplace. The U.S. Department of Transportation (DOT) currently requires random drug testing for workers who are engaged in “safety-sensitive” tasks. It is a requirement of the ADA and the DOT that an individual must not pose a direct threat to the safety of others in the workplace, and such requirement cannot be limited by reasonable accommodations. In 2009, the Department of Justice issued guidelines for federal prosecutors in states with legalized medical marijuana, that made clear that those laws in no way affect the DOT’s own regulations for safety-sensitive employees. Pilots, truck drivers, train engineers, and the like have no protections from medical marijuana laws for failing a drug test.
What should employers do now?
Businesses should update their internal drug-use rules to incorporate federal law language making marijuana illegal, to assert that it may never be used or possessed in the workplace. There should also be written notice that a registry identification card is not a defense if the employee is impaired while operating planes, trucks, or other heavy equipment. Application procedures should be clearly communicated to potential employees, including post-offer testing and other drug-testing policies. Employers should consider adopting zero-tolerance policies so that it is clear what is and is not permissible in the workplace.
As always, workers who need to be fired for marijuana use that impairs their performance need to be meticulously documented, with written records of specific incidences, reprimands, and disciplinary actions.
It behooves an employer to be aware of the law and to know that although not all situations are clear-cut, there is no requirement to make special accommodations for medical marijuana users, at least as the law now stands. Anti-discrimination laws still may apply; however, having a registration card does not make an employee exempt from workplace rules, especially those regarding safety. Employers can and should continue their current drug-testing policies to include marijuana, and it is likely that they will still be permitted to terminate, discharge, or discipline an employee who tests positive for marijuana use regardless of whether it was authorized for medical purposes. The Colorado case decision might provide instruction to other courts and states on how to handle employee medical-marijuana workplace issues, especially when the substance is utilized outside of work, but courts in other jurisdictions will not be bound by their reasoning. Employers will need to be aware of changes in their own states as this area of law develops.