Uncertainty in Hi-Times: Considerations for Employers in a Changing World2017 – Article
Background on legalization
In 1937, Congress passed the Marihuana Tax Act.1 Although the Act did not criminalize marijuana use, it regulated, and imposed taxes on, that use.2 This Act was overturned in 1969 in Leary v. United States,3 and was repealed by Congress the following year.4
Over time, marijuana use was further restricted, culminating in the Federal Controlled Substances Act (“CSA”) in the 1970’s, which established Schedules for ranking substances according to their dangerousness and potential for addiction.5 Under the CSA, narcotics are placed in one of five schedules.6Marijuana is categorized as a Schedule I drug in the CSA.7 Under the CSA, drugs in this category have a (1) “high potential for abuse,” (2) “no currently accepted medical use in treatment in the United States,” and a (3) “lack of accepted safety for the use of the drug under medical supervision.”8
In 1996, California was the first state to approve the use of marijuana for medical purposes with the enactment of the Compassionate Use Act (“CUA”).9 This ended the 59 year designation as an illicit substance with no medical value.10
CURRENT STATE OF THE LAW AND DEVELOPMENTS
Marijuana remains illegal under federal law for any reason, medicinal or recreational.11
Notwithstanding, as of April 2017, forty-four states have legalized marijuana to some degree.12 Only six states restrict marijuana use altogether—Indiana, West Virginia, Kansas, Nebraska, South Dakota, and Idaho.13
In July 2016, there were only four states that legalized recreational marijuana -- Alaska, Oregon, Colorado, and Washington. In November 2016, nine states voted on marijuana-related ballot initiatives -- four considered medical marijuana and five considered recreational marijuana.14 Eight of these initiatives passed, and four of the five states considering medical marijuana passed a law legalizing its use.15 Thus, more than 20 percent of Americans live in states where recreational marijuana is legal.16
Despite an apparent sea change in attitude about marijuana, the federal government has not allowed an exception for marijuana use authorized by state law.17
RECREATIONAL MARIJUANA STATES (DARK GREEN)
Eight states, i.e., Alaska, Oregon, Colorado, Washington, California, Massachusetts, Maine, and Nevada, and Washington D.C. have passed laws legalizing recreational marijuana.18 Laws in almost all of these states permit residents to also grow their own plants and possess marijuana in public. The amount a person may possess at one time varies by state.19 It should be noted, however, that legalization of marijuana means you can’t be arrested, ticketed, or convicted for using marijuana if you follow the state laws as to age, place, and amount for consumption. However, you can still get arrested for selling or trafficking marijuana if you fail to comply with state laws on licensure and taxation.20
In addition to these eight states, thirteen states and the U.S. Virgin Islands have decriminalized the possession of marijuana.21,22 Multiple cities have also decriminalized possession -- including Philadelphia, New York City, Wichita, Toledo, Nashville, Memphis, and Kansas City, Kansas.23 Decriminalization of marijuana is not the same as legalization of marijuana. Decriminalization means that a state repealed or amended its laws to make certain acts criminal, but no longer subject to prosecution.24 In the marijuana context, in these states, possession of a small amount (typically about 1 ounce or less) is not a crime or is punishable by only civil fines between $25 and $600.25,26 In many states, possession of small amounts of marijuana is treated like a minor traffic violation.
COMPREHENSIVE MEDICAL MARIJUANA STATES (YELLOW)
Twenty-four states have enacted laws pertaining to the use of medical marijuana, including Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.27 The District of Colombia, Guam, and Puerto Rico allow medical marijuana use.28 The diseases and conditions for which marijuana can be prescribed vary by state.29
LOW THC MEDICAL MARIJUANA STATES (ORANGE)
Seventeen states (mostly southern states) have adopted limited access marijuana product laws, allowing only therapeutic cannabis that is low in THC and high in CBD.30 These states are not counted as comprehensive medical marijuana programs.31 These states include Alabama, Florida, Georgia,32 Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, and Wisconsin.33 Restrictions and the diseases and conditions of which the high CBD oil can be used to treat vary by state.
The legalization of marijuana, especially for medicinal purposes, has spurred an unanticipated debate. As discussed, marijuana is classified as a Schedule I drug, but this designation appears to be at odds with public opinion and politics. Gallup’s polling shows that just 25% of respondents approved of the idea of legalizing marijuana nationally in 1995, compared to 60% in 2016, an all-time high.34 Data from a more recent survey from the independent Quinnipiac University showed 59% support for nationwide legalization, as opposed to 36% opposition, and a 93% approval for the legalization of medical marijuana, compared to just 6% opposition.35
SAMPLE OF DRUGS ON SCHEDULE I and II36
- OxyContin (OxyCodone)
There is a growing consensus that marijuana does not meet at least 2 of the 3 criteria for being a schedule I drug -- i.e., that it has (1) “no currently accepted medical use in treatment in the United States,” and a (2) “lack of accepted safety for the use of the drug under medical supervision.” Several states recently expanded or are considering establishing or expanding their medical marijuana programs, including:
- Montana (expanded conditions, including PTSD, and no longer requires multiple doctors for chronic pain treatment),37
- Georgia (expanded from 9 to 15 conditions and to treat people in hospice care),38
- New Hampshire (bills to decriminalize marijuana, and expand conditions, including PTSD and chronic pain),39
- Connecticut (bills to expand conditions to include common ailments like eczema, arthritis and fibromyalgia),40
- Vermont (bill to expand conditions, including PTSD),41
- Hawaii (bill to expand conditions, including Lupus, MS, arthritis, and autism),42
- Florida (voter approved Amendment 2 to expand conditions “for individuals with specific debilitating diseases or conditions as determined by a licensed state physician”),43and
- Virginia (bill to expand conditions, including cancer, Crohn’s disease, glaucoma, hepatitis C, HIV, Alzheimer’s, and MS).44
TOP REASONS FOR THE STATE EXPANSION OF MEDICAL MARIJUANA PROGRAMS AND DECRIMINALIZATION:
- Public Opinion (polls show 93 percent of Americans support medical marijuana);45
- Fight opioid addictions/give patients another option for pain relief without use of opioids;46,47
- Tax revenue generated by municipalities, cities, counties, and states;48
- Existing medical marijuana programs are too restrictive and require additional patients to survive;49
- Racial Impact; and
- Conflicting studies pertaining to effects of impairment (e.g., 2015 NHTSA found drivers who used marijuana were at a significantly lower risk for a crash than drivers who use alcohol. And after adjusting for age, gender, race and alcohol use, drivers who tested positive for marijuana were no more likely to crash than those who had not used any drugs or alcohol prior to driving).50
COMPARISON OF USES AND COMPONENTS OF MEDICAL MARIJUANA
RECREATIONAL MARIJUANA V. MEDICAL MARIJUANA V. LOW-THC CBD
Tetrahydrocannabinol (THC) and cannabidiol (CBD) are two types of cannabinoids found naturally in the resin of the marijuana plant, Cannabis Sativa.51 Both of these substances interact with the cannabinoid receptors found in the human body, but the types of effects brought about by these compounds are different.52 For this reason, CBD is more often used as a medical treatment than THC.53
WHAT IS THC?
THC is the main psychoactive component of the marijuana plant.54 It is the primary agent responsible for creating the “high” feeling associated with marijuana use.55 This compound works by imitating the effects of anandamide, a neurotransmitter produced naturally by the human body to help modulate sleeping and eating habits, as well as the perception of pain.56
WHAT IS CBD?
CBD has the same chemical formula as THC, but the atoms are arranged differently.57 This slight variance causes THC to create a psychoactive effect while CBD lacks such an influence.58 The Food and Drug Administration of the United States considers hemp oil, which contains CBD, to be a dietary supplement and therefore it is legal to import, sell, purchase and consume hemp oil in all 50 states.59 The effects of CBD include: reduction of psychotic symptoms, relief from convulsions and nausea, decreased anxiety, decreased inflammation.60 Some recognized medical applications for CBD, include: schizophrenia, reduce psychotic symptoms, social anxiety disorder – lower anxiety, depression, and side effects of cancer treatment – decrease pain and nausea while stimulating appetite.61
WHAT DOES MARIJUANA LEGISLATION MEAN FOR EMPLOYERS?
The shift in marijuana laws and drug policy, as well as the inconsistency between federal and state laws has created a haze of concern for many employers about workplace testing.62 Employers with “zero tolerance” drug use policies in most states (including those that have decriminalized marijuana use) can still refuse to hire or terminate employees who fail a drug test for marijuana, with or without medical authorization.63 Additionally, marijuana use or possession in the workplace remains grounds for termination.64 In addition, in most states, employers with federal contracts are under no obligation to accommodate medical use, which remains illegal under federal law.65 Moreover, employers may also regulate employees who work in safety sensitive jobs such as those that operate heavy machinery.66
FEDERALLY REGULATED BUSINESSES WITH ZERO TOLERANCE POLICIES67
Employers in states in which marijuana has been legalized must first determine whether their workplace is regulated by The Drug Free Workplace Act (the “Drug Free Act”).68 The Drug Free Act requires that all federal grant recipients and federal contractors adopt a zero tolerance policy at their workplaces and certify to the federal government that their workplaces are drug free.69 In addition to this certification, these employers generally must:
- Develop and publish for employees a written policy and ensure that employees read and consent to the policy as a condition of employment;
- Initiate awareness programs to educate employees about the dangers of drug abuse, the company’s drug workplace policy, any available drug counseling, rehabilitation and employee assistance programs, and penalties that may be imposed on employees for drug abuse violations;
- Require that all employees notify the employer or contractor within five days of any conviction for a drug offense in the workplace; and
- Make an ongoing good faith effort to maintain a drug-free workplace.70
The Drug Free Act does not require that employers conduct mandatory drug tests.71
NON-FEDERALLY REGULATED BUSINESSES WITH ZERO TOLERANCE POLICIES
Employers that are not federally regulated can also breathe easy, as cases decided in states where marijuana use is legal have held an employer can enforce its zero tolerance policies.72
For instance, in Roe v. Teletech, the Washington Supreme Court held there was no public policy right under Medical Use of Marijuana Act requiring employers to accommodate medical marijuana use even when it is outside of the workplace, and dismissed plaintiff’s wrongful termination claim.73 The Washington Supreme Court noted that Washington’s Medical Use of Marijuana Act was passed only to provide an affirmative defense to qualifying patients, caregivers and physicians for conduct that is otherwise prohibited by law, such as a defense to a violation of a local ordinance or state law prohibiting the personal possession or use of the drug.74
In Emerald Steel Fabricators v. Bureau of Labor & Industries,75 the Oregon Supreme Court held employers are not required to accommodate the use of medical marijuana under the Oregon Medical Marijuana Act.76 In that case, the Court held that an employer was justified in revoking an employee’s offer of permanent employment after he notified the employer of his medical marijuana use.77Following termination, the employee argued that he was discharged because of a disability which the employer failed to accommodate.78In ruling in favor of the employer, the Court held that the employee was not protected and that the United States Controlled Substances Act preempted the Oregon statute authorizing use of medical marijuana.79
In Casias v. Wal-Mart Stores, Inc.,80 a Michigan federal district court ruled that an employee who was terminated by Wal-Mart after testing positive for validly obtained medical marijuana81 stated no legal claims for wrongful discharge.82The court accepted Wal-Mart’s argument that Michigan’s medical marijuana law does not regulate private employment;83 rather, it merely provides a potential affirmative defense to criminal prosecution or other adverse action by the state.84 The court rejected the plaintiff’s argument that the law created a new protected employee class, which “would mark a radical departure from the general rule of at-will employment in Michigan.”85 The decision of the Michigan federal district court was affirmed by the U.S. Court of Appeals for the Sixth Circuit the following year.86
Some employers have gone a step further and have fired or failed to hire employees because they admitted to using medical marijuana at home or because they failed a drug test because of the medical marijuana, even though the employees were never actually found to be impaired or under the influence of drugs at work. In challenging such employment actions, in Ross v. Raging Wire Telecommunications, Inc.,87 the California Supreme Court ruled that it is not discrimination to fire an employee for using medical marijuana.88 The court held that where a new employee, whose physician recommended he use marijuana to treat chronic pain, was fired when a pre-employment drug test required of new employees revealed his marijuana use, a disability discrimination statute did not require the employer to accommodate the employee’s marijuana use,89 and the employee did not state a cause of action for termination in violation of public policy.90
In Johnson v. Columbia Falls Aluminum Company,91 the Montana Supreme Court ruled, in an unpublished decision, that an employer is not required to accommodate an employee’s use of medical marijuana under the federal ADA or the Montana Human Rights Act.92
In Coats v. Dish Network, LLC,93 Brandon Coats argued that Dish Network violated Colorado law by firing him for using medical marijuana after work.94 Mr. Coats is a quadriplegic who has used a wheelchair since he was a teenager. He obtained a medical marijuana license in 2009.95
The trial court dismissed Coats’ claim that he had been wrongfully terminated after finding that medical marijuana use is not lawful under Colorado state law.96 In a split decision, the majority of the Court of Appeals upheld the trial court’s decision.97The Supreme Court of Colorado affirmed, as the Court found the term “lawful” as it is used in Colorado law is not restricted in any way, and declined to engraft a state law limitation onto the term. Therefore, an activity such as medical marijuana use that is unlawful under federal law is not a “lawful” activity under Colorado law.98
Notably, the cases where employers have prevailed in enforcing their zero tolerance drug policies typically include: (1) a clear and unambiguous drug-free policy; and (2) “at will” employment.99 Conversely, where the employee has been a union employee and could only be terminated for “just cause” there has been a difference in outcomes.100
It is also worth noting that even in some states where recreational use of marijuana is legal, state legislatures are protecting the rights of the employer to enforce its workplace rules, including specific language in its legislation.
The ballot measure passed in Alaska specifically provides “Nothing in this chapter is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”101 Likewise, the Oregon law legalizing recreational use of marijuana states that the Act “may not be construed to amend or affect in any way any state or federal law pertaining to employment matters.”102In Florida, the medical use of marijuana does not include use in a qualified patient’s place of employment, if restricted by his or her employer.103 In Maine, the newly enacted Legalization Act states that the law “may not be construed to require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace” and “does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.”104 Similarly, in Massachusetts, a provision in the recently enacted act states that the law “shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”105
If an employer is not required to comply with the Drug Free Act, such employer may still institute a zero tolerance policy for those workers in “safety-sensitive” positions.106 A “safety-sensitive” position, generally, is one in which an employee is responsible for the safety of herself or others.107 Positions that fit into this designation would include those involving driving or the use of machinery, among many others.108 If such a position requires a commercial driver’s license (CDL), then the employer is mandated to abide by the Omnibus Transportation Employee Safety Act of 1991, which requires that all employers drug test employees whose duties require a CDL.109
CAUTION: THERE ARE GROWING EXCEPTIONS TO THE GENERAL RULE
Even if an employer is mandated or chooses to adopt a zero tolerance policy, such employer may still encounter certain challenges regarding enforcement inherent in the application of laws and the evolving legal landscape.110
AMERICANS WITH DISABILITIES ACT (ADA)
For example, the ADA prohibits employers from discriminating against qualified individuals on the basis of disability,111 which is defined as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.112 The ADA prohibits discrimination in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.113 Covered employers are required to provide reasonable accommodations to the disabled employee so that the employee can perform essential duties of his job, as long as such accommodations do not impose an undue hardship on the employer.114 According to the Equal Employment Opportunity Commission, an accommodation is generally “any change in the work environment or the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”115
Courts have considered whether the ADA requires employers to accommodate employees’ legal use of medical marijuana to treat serious medical conditions.116 The question is whether an employer can take an adverse action against an employee because of that employee’s participation in a state-authorized medical marijuana program or whether the employer must accommodate that employee’s use of medical marijuana.117 In states where statutes are silent on this issue, courts have generally determined that employers are not required to accommodate medical marijuana use under the ADA or under state statutes modeled on the ADA.118 However, employers must be cautious that an employee who may be the subject of termination does not have an underlying medical condition that would require accommodation under the ADA. For example, in the case of EEOC v. The Pines of Clarkston, Inc., the Equal Employment Opportunity Commission (EEOC) filed an action in the Eastern District of Michigan against an assisted living facility asserting that a nurse’s termination was not related to her medical marijuana use, but was a pretext for her dismissal because she suffered from epilepsy, which would violate the ADA and Michigan’s Persons with Disabilities Civil Rights Act.119 The District Court in EEOC v. The Pines of Clarkston, Inc.denied defendant’s motion for summary judgment, ruling that it was a jury question as to whether the employer’s stated reason for terminating the employee based on her failing a drug test was a pretext for the real reason for her termination, namely her epilepsy, which is a protected disability under the ADA.120
STATE SPECIFIC ACCOMMODATION PROVISIONS
Some states have enacted laws which speak specifically to medical marijuana accommodation.121 For example, in New York, a certified patient “shall be deemed to be having a ‘disability’ under the state’s human rights law.”122 Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada also have laws which contain either anti-discrimination or reasonable accommodation provisions applicable to employers.123In Arizona, Delaware, Minnesota, and Nevada, employers cannot take an adverse employment action based solely on an employee’s participation in a medical marijuana program “unless failing to do so would violate federal laws or regulations or cause an employer to lose a monetary or license related benefit under federal law or regulations,” such as the Drug Free Workplace Act of 1988.124
Therefore, in states where there is a duty to accommodate an employee’s marijuana use, employers must usually consider the specific needs of the job as well as any applicable competing regulations before acting.125
MEDICAL MARIJUANA AND WORKER’S COMPENSATION
Given the numbers of states allowing medical marijuana, employers can reasonably expect to encounter an increasing number of workers’ compensation claims in which medical marijuana has been recommended by a physician for use by the injured employee. This presents an additional level of legal issues to consider.
For example, in the 2014 decision Vialpando v. Ben’s Automotive Services, a three-judge panel of the New Mexico Court of Appeals ruled that an employer and insurer must reimburse an injured worker for medical marijuana, pursuant to the state’s Compassionate Use Act.126 Gregory Vialpando suffered a low back injury at work that necessitated several surgeries leaving him with pain of high intensity and frequent duration.127 Vialpando was certified by his doctor to participate in the New Mexico’s Compassionate Use Act’s medical marijuana program.128 The workers’ compensation judge granted Vialpando’s request for use of medical marijuana finding that his use of the medical marijuana constituted “ongoing and reasonable medical care” and that Vialpando was entitled to reimbursement for its cost from his employer and its workers compensation carrier.129
Ben’s Automotive Services appealed the ruling of the workers’ compensation judge, arguing that the order to reimburse Vialpando was illegal and unenforceable under federal law and that New Mexico’s Compassionate Use Act did not authorize reimbursement for medical marijuana.130
The New Mexico Court of Appeals rejected the employer’s arguments finding that where Vialpando’s doctors recommended his use of medical marijuana under a Compassionate Use Act program, such use constitutes reasonable and necessary health care services from a health care provider under the Workers’ Compensation Act.131 The Appeals Court specifically rejected Ben’s Automotive Services’ argument that because marijuana is illegal under the federal Controlled Substances Act the act of reimbursing Vialpando for his medical marijuana expense would require Ben’s Automotive to violate federal law.132
In another New Mexico decision, Maez v. Riley Industrial, the Court of Appeals ruled the Compassionate Use Act allows Mr. Maez’s medical marijuana authorization to be treated as a prescription for workers’ compensation purposes.133 Miguel Maez suffered two back injuries in 2011, while working for Riley Industrial Services Inc. Maez received temporary disability workers’ compensation benefits for his back injuries and a New Mexico workers’ compensation judge ruled that he was entitled to ongoing reasonable and necessary medical care.134 However, the workers’ compensation judge also ruled that medical marijuana did not constitute reasonable and necessary medical care for the plaintiff because Maez’s doctor did not “prescribe” the marijuana for use by him, but merely recommended it as part of a treatment plan.135 On that basis, the judge ruled that Riley Industrial did not need to reimburse Maez for his medical marijuana expense. However, the three-judge panel of the New Mexico Court of Appeals unanimously reversed that decision and ruled that New Mexico’s Compassionate Use Act permitted Maez’s medical marijuana, which had been certified for his use by a physician, to be treated as a prescription that should be paid for by his employer pursuant to its workers’ compensation obligations.136
An additional question is whether an employee who was fired for testing positive for marijuana can collect unemployment benefits? In the 2014 decision, Braska v. Challenge Manufacturing Co., the Michigan State Court of Appeals ruled that under the Michigan Medical Marijuana Act an employee terminated solely for testing positive for marijuana may collect unemployment benefits.137 The Appeals Court panel ruled that three decisions by Michigan state courts properly reversed decisions by the Michigan Compensation Appellate Commission denying three workers unemployment compensation who were terminated for testing positive for marijuana. According to the Appeals Court, a provision of the Michigan Medical Marijuana Act prohibits penalties for those who use medical marijuana legally.138 Each of the three terminated employees held a Michigan medical marijuana card approved by a physician for treatment of a health condition.139 The Appeals Court concluded that only the ingestion of marijuana in the workplace or working while impaired or under the influence need not be accommodated by the employer under Michigan’s unemployment Insurance law.140 In late 2015, the Michigan Supreme Court refused to hear the appeal from the Unemployment Insurance Agency,141 therefore, employees with medical marijuana cards who lose jobs after failing their employer’s drug tests will remain eligible for unemployment compensation benefits.
A similar result was reached in the Illinois Appellate Court decision Eastham v. Housing Authority of Jefferson County.142 In that case, plaintiff William Eastham, a maintenance employee for the defendant Housing Authority, took a random drug test at work a few weeks after returning from vacation and admitted to his employer that he has smoked marijuana during his time off. Based on his admission, plaintiff Eastham was terminated by his employer in accordance with Housing Authority policy of a having a drug-free and alcohol-free workplace.143
Following his termination, plaintiff Eastham applied for unemployment insurance benefits. His application was denied by the Department of Employment Security on the basis that his choice to use drugs constituted willful misconduct.144 Eastham appealed to the Illinois Circuit Court, which reversed the decision of the state agency and found that plaintiff was entitled to unemployment insurance benefits because the Housing Authority’s policy only prohibited use of controlled substances while in the course of employment.145
On further appeal, the Illinois Appellate Court reviewed the final decision of the administrative agency and affirmed the decision of the trial court finding that plaintiff’s actions while on vacation did not constitute misconduct. In arriving at the result, the Appellate Court ruled that “in the course of employment” means where the employee fulfills his work duties and while performing those duties.146 The Court also noted that Eastham was not under the influence of drugs at work.147
COMPLICATIONS WITH DRUG TESTING: WHAT ARE YOU TESTING FOR?
Many employers have workplace drug policies that require employees to abstain from marijuana use. To enforce these policies, employers may require employees to pass a pre-employment drug test through urinalysis.148Employers may also require employees to be tested for drugs throughout the course of their employment.149 The ADA does not limit an employer’s ability to perform drug tests in order to determine whether the employee is engaging in illegal use of drugs.150
Employers may want to reconsider how to conduct drug tests for marijuana. Urinalysis is the common test for marijuana use.151Urinalysis cannot, however, determine current impairment, but in some cases can determine if a person has used marijuana in the previous two to six weeks.152 As a result, an individual could test “positive” for marijuana a month or more after usage, but a positive test does not mean the person was under the influence of marijuana at the time of the positive test.153 Urinalysis tests are typically pass/fail.154Additionally, they do not measure THC itself, but a non-psychoactive byproduct of THC created in the liver than can linger for weeks and even months.155 As an alternative, some medical marijuana advocates suggest a model workplace policy whereby the employer would tests the blood or saliva, instead of the urine, of an employee.156Blood tests are a much more accurate indicator for active THC impairment.157 Marijuana can also be detected using hair and sweat. However, like in urine, there is currently no “under the influence” limit for the presence of marijuana for these tests.158
CONCLUSION AND POLICY CONSIDERATIONS
The marijuana and drug-testing laws continue to evolve. As public opinion shifts across the country favoring legalization of marijuana, and regulating marijuana more like alcohol, it is likely that employers will be subject to greater scrutiny for drug testing employees for marijuana including at-will employees. Therefore, employers should at a minimum consider the inherent tension between employer and employee rights, and the desire to have a safe and drug-free workplace. They should also consider whether the import of such policies is to prevent use, possession, and impairment at work or to prohibit employees from using marijuana at any time.
Employers seeking to discipline and/or terminate employees under the influence of marijuana at work may want to consider taking the following actions:
- Consult an attorney familiar with the laws in the state where the workplace policy will be applied;
- Review your company’s current workplace policies pertaining to drug use to ensure they are clear and unambiguous;
- Reevaluate the circumstances when the employer will conduct pre-employment, random, or for cause drug testing;
- Reevaluate what form of drug testing will be conducted for marijuana use; and
- Closely monitor legislative and legal developments pertaining to marijuana.
1 Marihuana Tax Act of 1937, Pub. L. No. 238, §§ 1-14 (1937), available at http://www.druglibrary.org/schaffer/hemp/taxact/mjtaxact.htm.
3Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).
4Comprehensive Drug Abuse Prevention and Control Act of 1970, Section 1101(b)(3), Pub. L. No. 91-513, 84 Stat. 1236. 1292 (1970); repealing the Marihuana Tax Act which had been codified in Subchapter A of Chapter 39 of the Internal Revenue Code of 1954.
521 U.S.C. § 812(c)(Schedule I)(c)(10) (2006); (CSA) are divided into five schedules. An updated and complete list of the schedules is published annually in Title 21 Code of Federal Regulations (C.F.R.) §§ 1308.11 through 1308.15.
621 U.S.C. § 812(a) (2006).
721 U.S.C. § 812(c)(Schedule I)(c)(10) (2006).
8See § 812(b)(1)(A-C); see also Drug Enforcement Administration, Drug Scheduling, available at http://www.dea.gov/druginfo/ds.shtml.
9Cal. Health & Safety Code § 11362.5(a) (West 2007).
10See, e.g., MICH. COMP. LAWS ANN. § 333.26422(2)(a) (West 2008) (stating “the National Academy of Sciences Institute of Medicine in a March 1999 report, has discovered beneficial uses for marihuana in treating or alleviating a variety of debilitating medical conditions.”) The report found that: “scientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC, for pain relief, control of nausea and vomiting, and appetite stimulation; smoked marijuana, however, is a crude THC delivery system that also delivers harmful substances. The psychological effects of cannabinoids, such as anxiety reduction, sedation, and euphoria can influence their potential therapeutic value. Those effects are potentially undesirable for certain patients and situations and beneficial for others. In addition, psychological effects can complicate the interpretation of other aspects of the drug’s effect.” MARIJUANA AND MEDICINE: ASSESSING THE SCIENCE BASE, 179 (Janet E. Joy, Stanley J. Watson, Jr., John A. Benson, Jr., eds., 1999). “Further studies have found that marijuana is effective in relieving some of the symptoms of HIV/AIDS, cancer, glaucoma, and multiple sclerosis.”
11See generally 21 U.S.C. § 812 (2006); 21 U.S.C. § 844 (2006); Raich, 545 U.S. at 57.In late August 2013, the U.S. Department of Justice announced an update to their marijuana enforcement policy. The statement reads that while marijuana remains illegal federally, the USDOJ expects states like Colorado and Washington to create “strong, state-based enforcement efforts.... and will defer the right to challenge their legalization laws at this time.” The department also reserves the right to challenge the states at any time they feel it's necessary.
12Since California’s adoption of the CUA in 2006, the following states have followed California’s initiative: Alaska, Colorado, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Washington, Oregon, Rhode Island, Vermont, and Michigan. See Alaska Stat. § 17.38.010 (West 2008); Cal. Health § Safety Code § 11362.5(b)(1)(A) (West 2007); Colo. Rev. Stat. Ann. § 18-18-406 (West 2001); Del. Code. Ann. tit.16, §§ 4901a-4928a (West 2014); Haw.Rev. Stat. § 329-122 (West 2007); Me. Rev. Stat. Ann. tit.22, §§ 2421 – 2430-B (West 2004); Md. Code Ann., Health §§ 13-3301 to 13-3316 (West 2014); Mich. Comp. Laws § 333.26424 (West 2008); Mass. Gen. Laws Ch. 94(D), § 2 (West 2014); Minn. Stat. Ann. §§ 152.21-152.37 (West 2015); Mont. Code Ann. § 50-46-301 (West 2007); Nev. Rev. Stat. §§ 453A.010 - 453A.170 (West 2008); N.H. Rev. Stat. Ann. §§ 126-X:1 to –X:11 (Lexis 2014); N.J. Stat. Ann. §§ 24:6I-1 to 16 (Lexis 2015); N.M. Stat. § 26-2B-1 (West 2008); N.Y. Pub. Health §§ 3360-3369-e (Lexis 2014); Or. Rev. Stat. § 475.300 (West 2003); R.I. Gen. Laws § 21-28.6-4 (West 2007); Vt. Stat. Ann. tit.18 § 4471 (West 2007); Wash. Rev. Code § 69.51A.005 (West 2009).
15Id. (California, Maine, Massachusetts, and Nevada passed legislation for recreational marijuana).
17Raich, supra note 10.
19See 35 N. Ill. U. L. Rev. 461 (2015).
21See http://norml.org/aboutmarijuana/item/states-that-have-decriminalized: The states include: Connecticut, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, Rhode Island, and Vermont.; see also http://norml.org/aboutmarijuana/item/states-that-have-decriminalized.
26Twenty states and the District of Columbia have decriminalized small amounts of marijuana. This generally means certain small, personal-consumption amounts are a civil or local infraction, not a state crime (or are a lowest misdemeanor with no possibility of jail time). Decriminalization states are Alaska (also now with legal provisions), California, Colorado (also now with legal provisions), Connecticut, Delaware (enacted in 2015), Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New York, North Carolina, Ohio, Oregon, Rhode Island, Vermont and Washington (also now with legal provisions), and the District of Columbia (also now with legal provisions). Of those, six—Minnesota, Missouri, Nevada, North Carolina, Ohio (and Oregon before legalization)—have it as a low-level misdemeanor, with no possibility of jail for qualifying offenses. The other states with decriminalization policy have specified small amounts of marijuana as a civil infraction, or the like.
2958 Wayne L. Rev. 103 (2012), Caught in the Crossfire: The dilemma of Marijuana “Medicalization” for Healthcare Providers.
30Supra note 25.
32See http://www.legis.ga.gov/legislation/en-US/Display/20152016/HB/1. On April 16, 2015, Georgia became the 24th state to enact a medical marijuana law when Governor Nathan Deal signed legislation legalizing the use of a low-potency form of cannabis oil for medicinal uses.
36https://www.dea.gov/druginfo/ds.shtml. (Definition of Schedule II drug is: “drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence. These drugs are also considered dangerous”).
37http://norml.org/legal/item/montana-medical-marijuana .Amends the state’s medical marijuana laws. It expands the pool of qualifying patients to include those with PTSD and no longer requires those with chronic pain to receive a recommendation from multiple physicians; see alsohttp://dphhs.mt.gov/Portals/85/qad/documents/LicensureBureau/MarijuanaProgram/MMPStatsbyQuarter4-4-17.pdf?ver=2017-04-04-162838-433.
38http://www.reuters.com/article/us-georgia-marijuana-idUSKBN171331 (March 30, 2017, Georgia State Senate passed a bill to include people with 15 medical conditions, up from nine. The additional 6 conditions include AIDS, Alzheimer’s, and Tourettes’s syndrome).
46http://www.iflscience.com/health-and-medicine/legalization-of-cannabis-dramatically-cuts-opioid-abuse-rates/ (The research, published in Drug and Alcohol Dependence, was able to take the data of hospital discharges between the years of 1997 and 2014 from 27 states. They homed in on those who had been released after either opioid dependence and abuse or overdoses, and found that in states that legalized cannabis for medical use, for every 1,000 patients discharged, the number of abuses fell by 23 percent, and the number of overdoses by 11 percent).
48https://yaledailynews.com/blog/2017/04/13/connecticut-holds-public-forum-on-marijuana/; see also https://www.forbes.com/sites/kellyphillipserb/2016/04/20/on-420-its-high-time-to-think-about-taxes-revenues-marijuana/#2de4ee7952cb
49See e.g., http://www.rollingstone.com/politics/news/7-states-where-medical-marijuana-is-legal-but-barely-accessible-20150609
50https://www.washingtonpost.com/news/wonk/wp/2015/02/09/stoned-drivers-are-a-lot-safer-than-drunk-ones-new-federal-data-show/?utm_term=.202d952e0fac;see also http://www.huffingtonpost.com/sam-tracy/putting-marijuana-dui-in-_b_6023136.html(texting while driving doubles the risk of a crash and talking triples the risk; alcohol consumption increases the risk by 11 times).
56Supra note 37.
59See more at http://medicalmarijuanainc.com/overview-of-u-s-medical-marijuana-law/#sthash.5iKhIixE.dpuf
60Borgelt, LM; Franson, KL; Nussbaum, AM; Wang, GS (February 2013). "The pharmacologic and clinical effects of medical cannabis." Pharmacotherapy 33 (2): 195–209.
6257 A.L.R.6th 285, (2010).
64Brief of the American Pain Foundation,et.al., as Amici Curiae Supporting Petitioners, at 20-24, Ross v. RangingWire Telecomms., Inc., 174 P.3d 200 (Cal. 2008), No. C043392 (Aug. 7, 2006).
65See, e.g., Cal. Health & Safety Code § 11362.785(a); Or. Rev. Stat. § 475B.413 (West 2003); See more at 26 Hofstra Lab. & Emp. L.J. 619 (2009).
66StoptheDrugWar.org, Medical Marijuana and the Right to Work: Under Attack in California and Oregon, At Risk In Most Other States As Well, Drug War Chronicle, Feb. 1, 2008, available at http://stopthedrugwar.org/ chronicle/2008/feb/01/medical_marijuana_and_right_work.
67The term derives from early anti-drug policies which were developed under the presidential administration of Ronald Reagan in the so-called “war on drugs.”The State of Criminal Justice 2011, Chpt. 7, John D. “Jay” Elliot.
6841 U.S.C.A. § 8103 (2011).
71Parker v. Atlanta Gas Light Co., S.D.Ga.1993, 818 F.Supp.345 (1993).
72Roe v. TeleTech Customer Care Mgmt. LLC., 171 Wn.2d 736, 756, 257 P.3d 586 (2011).
73Roe, 171 Wn.2d at 755.
74Roe, 171 Wn.2d at 747-48.
75Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 248 Or. 159, 230 P.3d 518 (2010).
76Id. at 524.
77Id. at 529.
78Id. at 520-521.
80Casias v. Wal-Mart Stores, Inc., 764 F.Supp.2d 914 (W.D. Mich. 2011).
81Id. at 915.
83Id. at 919.
84Id. at 926.
85Id. at 922.
86Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir.2012).
87Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920, 174 P.3d 200 (Cal. 2008).
89Id. at 204.
90Id. at 208.
91Johnson v. Columbia Falls Aluminum Co., 350 Mont. 562 (2009).
93Coats v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (Colo. 2015), available at https://www.courts.state.co.us/ userfiles/file/court_probation/supreme_court/opinions/2013/13sc394.pdf.
94Id. at 850.
95Retrieved from http://www.huffingtonpost.com/2014/03/24/brandon-coats-dish-network_n_4762502.html.
96350 P.3d at 850.
98Id. at 853.
99See more at http://www.gordonrees.com/publications/2014/employees-can-inhale-but-what-should-employers-do.
103Fla. Stat. § 381.986(1)(g)(3)(c).
1047 M.R.S. § 2454(2) (effective Feb. 1, 2018).
105Mass. Gen. Laws ch. 94G, § 2(e).
106See e.g., http://www.safeaccessnow.org/ca_employment
108See e.g., http://www.maine.gov/bhr/rules_policies/policy_manual/15_2.htm
109Id.; and https://www.transportation.gov/sites/dot.gov/files/docs/199111028_Omnibus_Act.pdf.
110See U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Reasonable Accommodation & Undue Hardship Under the Americans With Disabilities Act, EEOC Bull. No. 915.002 (2002), at p. 39, available at https://www.eeoc.gov/policy/docs/accommodation.html. The EEOC Guidelines state that medications along with their side effects should be considered part of the disability, and accommodated for as well. Id.
11126 Hofstra Lab. & Emp. L.J. 619 (2009).
11242 U.S.C. § 12102.
114Supra note 88.
115Id.; see more at https://www.eeoc.gov/policy/docs/accommodation.html.
116Compare Washburn,104 P.3d at 612-16 (holding that the provision stating that an employer need not accommodate the use medical use of marijuana at the workplace only including the possession, administration or distribution of the drug at the workplace, and did not include using the drug at home during off-duty hours and having trace elements of the drug in the employee’s urine at work. The Court left open for the trial court what a “reasonable accommodation” would be under Oregon Law.) with Ross,174 P.3d at 206-08 (holding that the provision stating that nothing in the California Compassionate Use Act required the accommodation of marijuana in the workplace was not an exception to the general rule of accommodation in the FEHA).
117Enforcement Guidance: Reasonable Accommodation & Undue Hardship under the Americans with Disabilities Act, EEOC Compl. Man. (BNA), p. 24 (2002).
118Supra note 61.
119EEOC v. Pines of Clarkston, No. 13-CV-14076, 2015 U.S. Dist. LEXIS 55926 (E.D. Mich., Apr. 29, 2015).
120Id. at *18.
121See, e.g., Cal. Health & Safety Code § 11362.785(a); Or. Rev. Stat. § 475B.413 (West 2003).
126Vialpando v. Ben’s Automotive Services, 331 P.3d 975 (N.M. Ct. App. 2014).
128Id. at 977.