In 1996, California voters passed Proposition 215, known as the California Compassionate Use Act, making California the first state to legalize marijuana for medicinal use. In the succeeding 13 years, 32 states followed with full legalization for medicinal purposes, and 14 states passed laws allowing for low THC/high CBD forms of medical marijuana. Today, only three states (Idaho, South Dakota and Nebraska) prohibit all forms of medical marijuana. As an employment law attorney representing companies, when my clients call with questions about medical marijuana, they want to know how it affects their drug testing and safety policies and what accommodations, if any, they have to make for employees who are using medical marijuana. With the majority of the United States on board with medicinal cannabis use and 13 years of progressive legalization, one would think that we would have clear guidance on these topics. Well, one would be wrong. The legal landscape for employers grappling with the impact of medical marijuana on their workplaces remains quite hazy (pun intended).

The first layer of haze is created by the federal treatment of medical marijuana. Despite broad legalization across the country, cannabis remains a Schedule I drug under the Controlled Substances Act, which ironically means it has no medical use. Moreover, because federal regulations often govern how drug tests are performed and verified, medical use of marijuana (even in the states where it is legal) does not constitute a legitimate medical reason for testing positive for cannabis metabolites. What does this mean? The medical marijuana user who tests positive for cannabis will have his test certified as positive, despite his status as a legal user under state law. Conversely, the Adderall user who tests positive for amphetamines will have his test certified as negative as long as he can produce his prescription!

The second layer of haze is created by differences in the state acts. No two acts are exactly alike. Accounting for some of the differences is the method by which the states achieved legalization. Approximately half the states legalized medical marijuana by voter initiative, while the other half legalized through carefully crafted and debated legislation. Not surprisingly then, the level of detail provided across state acts varies. Some acts discuss workplace accommodations, others remain silent on the subject. Some states, like Pennsylvania, include anti-discrimination language, while its neighbor state, New Jersey, does not. Some acts provide great detail about what the act does and does not protect, while others are bare bones measures designed only to protect medicinal users from criminal prosecution.

The final layer of haze comes from judicial interpretation. For approximately 10 years, we felt like we had some clarity. The courts' rulings were consistently employer-friendly. For example, in 2008, the California Supreme Court dismissed a medical marijuana user's claim for disability discrimination stemming from a failed pre-employment drug test, see Ross v. RagingWire Telecommunications, 42 Cal. 4th 920 (2008). In finding for the employer, the California court held that nothing in Prop 215 was intended to address the rights and duties of employees and employers; the act was about protection from criminal prosecution. In 2011, the Supreme Court of Washington dismissed a medical marijuana user's claim for wrongful discharge in connection with a pre-employment drug test, see Roe v. TeleTech Customer Care Management (Colo.), 171 Wn. 2d 736 (WA 2011). The Washington court found that Washington's medical marijuana law was passed to provide an affirmative defense to criminal prosecution. Accordingly, there was no clear public policy to support the terminated employee's claim for wrongful discharge. In 2015, the Colorado Supreme Court addressed the conflict between Colorado's medical marijuana act and federal law, holding that federal law prevails in Coats v. Dish Network, 2015 CO 44 (2015). The terminated employee raised a claim under Colorado's wrongful discharge law, which prohibits termination based on an employee's engagement in lawful activities outside of work hours. In dismissing the claim, the court refused to find that medical marijuana use, even in accordance with state law, was a "lawful activity." Rather, the court found that "any activity such as medical marijuana use that is unlawful under federal law is not lawful for purposes of the wrongful discharge statute." As a final example, in 2016, the U.S. District Court for the District of New Mexico dismissed a claim brought by a plaintiff with HIV/AIDS who was terminated after testing positive for marijuana on a pre-employment drug test, see Garcia v. Tractor Supply, 154 F. Supp. 3d 1225 (U.S. Dist. NM 2016). The district court declined to recognize a claim for disability discrimination under the New Mexico Human Rights Act, holding that the employee was not terminated because of his disability. According to the court, he did not test positive because he had HIV/AIDS. He tested positive because he used marijuana. It did not matter that his marijuana use was in accordance with New Mexico's medical marijuana act.

For the first 10 years of legalization, employers felt comfortable maintaining zero tolerance drug policies. When HR told employees "we follow federal law," they did so with confidence. Lawyers, like me, told their clients that medical marijuana use did not merit special treatment; if someone tested positive for marijuana, they tested positive for marijuana period. Accordingly, for 10 years it remained business as usual.

That all changed in summer 2017. Between May and August, decisions of the Rhode Island Superior Court (Callaghan v. Darlington Fabrics, 2017 R.I. Super. LEXIS 88 (May 2017) , the Supreme Court of Massachusetts (Barbuto v. Advantage Sales and Marketing, 477 Mass. 456 (July 2017) and the U.S. District Court for the District of Connecticut (Noffsinger v. SSC Niantic Operating, 273 F. Supp. 3d 326 (August 2017) turned prior precedent on its head and left many employers feeling the signs of whiplash. All three cases dealt with preemployment drug testing of candidates who were legally using medical marijuana in accordance with the laws of their respective states. All three cases dealt with employers who confidently enforced their zero-tolerance drug testing policy, relied on federal law and denied employment following the positive drug test. All three cases resulted in victories for the employee!

Since the 2017 New England decisions, courts in Delaware, Arizona and New Jersey likewise issued employee-friendly decisions in cases dealing with post-accident drug testing. The stark contrast between the newly decided employee-friendly decisions and earlier case law can be summed up as follows:

  • Where the state medical marijuana act includes an anti-discrimination provision, courts are now willing to find an implied right of action. Otherwise, according to the courts, the anti-discrimination provision would have no teeth.
  • Terminated employees have been allowed to proceed with claims alleging disability discrimination under state disability discrimination statutes.
  • Providing an exception to an otherwise zero tolerance drug and alcohol policy for an employee using medical marijuana under state law is not per se unreasonable simply because marijuana is illegal under federal law.
  • Employers cannot place blanket reliance on the Drug Free Workplaces Act to maintain a zero tolerance drug testing policy. While the DFWA requires federal contractors to maintain a drug-free workplace, it is not violated by an employer who employs an individual using medicinal marijuana outside of work and outside of working hours.
  • State medical marijuana laws, and the protections provided therein, are not preempted by federal law. The district court in Connecticut specifically rejected preemption arguments related to the Controlled Substances Act and the Federal Food, Drug and Cosmetic Act.

So, why the change and what now?

Answering the "why" question is not easy, but I can render a few opinions on the subject. First, the statutory landscape had changed. By 2017, medical marijuana was legal in 90% of the country (if you count the CBD states). In 2009, when the California Supreme Court decided Ross, only 13 states had legalized medical marijuana. Moreover, by 2017, many states had legalized marijuana for recreational use. Additionally, by 2017, the Rohrabacher-Farr (Rohrabacher-Blumenauer) budgetary amendment had been in place for three years. The amendment prohibited the U.S. Department of Judgment from using federal dollars to interfere with the implementation of state medical marijuana laws. In other words, for three years, the feds had been leaving the states alone. Further, the medical marijuana laws being interpreted by the New England courts were more complex and included specific employment protections (anti-discrimination language for example) than those discussed in earlier decisions. For example, the California Compassionate Use Act is a single section of the California Uniform Controlled Substances Act, whereas the Connecticut Pallative Use of Marijuana Act is its own legislation and includes 23 separate sections. Finally, the legal arguments changed. Lawyers did what lawyers do best: they learned from past arguments that failed and changed the arguments.

While the reasons behind the changing outcomes may be speculative, the actions items are now. So, what is an employer to do?

  • Recognize that employees who are legally using medical marijuana under state law likely are also qualified individuals with disabilities under state disability laws. This means that some type of interactive process will be required anytime an employee discloses medical marijuana use or fails a drug test due to medical marijuana use. Indeed, the big fail of the employers in each of the New England cases was that they made no attempt to interact with the employee and failed to explore any potential accommodations.
  • Pay attention to the language of the statute to guide the interactive process. While there are no hard and fast rules as to what constitutes a reasonable accommodation for an employee who is also a medical marijuana user, the language of the statute can provide guidance.  For example, the Pennsylvania Medical Marijuana Act provides that employers are not required to "make any accommodation of the use of medical marijuana on the property or premises of any place of employment." Accordingly, a Pennsylvania employer can take the position that onsite use of medical marijuana is not a reasonable accommodation.
  • Remember that the burden is on the employer to demonstrate that a requested accommodation is unreasonable (i.e. would pose an undue hardship). Each analysis regarding a proposed accommodation should be well documented and fully evaluated. Whether a requested accommodation is unreasonable may depend upon the job classification of the employee. For example, it would be unreasonable for an employer to ignore a CDL driver's off-duty medical marijuana use knowing that the U.S. Department of Transportation prohibits CDL drivers from using any form of marijuana. Conversely, it would not be unreasonable to allow a customer service representative, who has been using medical marijuana for four months without any noticeable impact on her job performance, to continue working despite failing a random drug test as a result of her medical marijuana use. Employers are advised to revise their policies, review and revise job descriptions and make specific note of which jobs, if any, are safety sensitive.
  • Do not discriminate. Many states now include anti-discrimination language in the medical marijuana statute. To avoid running afoul of these provisions, employers should treat the employee using medical marijuana the same as the employee taking Percocet or Adderall or any other prescription drug that may cause impairment.
  • Don't blanketly rely upon federal law. The days of "sorry, we follow federal law" appear to be squarely in the rear-view mirror.  That being said, none of the laws require employers to tolerate impairment or employees coming to work clearly under the influence. Knowing, however, that the drug test likely won't be enough to demonstrate impairment for a medical marijuana user, be sure you have a reasonable suspicion testing policy and train your managers to recognize impairment.

There's no doubt medical marijuana is here to stay. As use expands and more states move toward full legalization, it is anticipated that the courts will continue the post-2017 trend of acceptance and of protecting employee rights. Accordingly, if you are an employer, or you represent an employer who has been sticking its head in the sand hoping this would all go away, it is time to face reality.

Denise Elliott is a member of the McNees Wallace & Nurick's labor and employment practice group. She focuses her practice on defending self-insured employers in workers' compensation matters and providing representation and counsel to clients in employment discrimination litigation, ADA/FMLA compliance, safety drug and alcohol testing and health issues.