For a decade, John Doe suffered from a debilitating medical condition involving panic attacks and severe nausea that left him unable to eat. After trying numerous prescription remedies, in 2002 Doe, who wasn't named in court documents, discovered that marijuana alleviated many of his symptoms. Doe told his doctor that marijuana helped, and his doctor issued him a card that identified him as a registered medical cannabis user under Oregon's Medical Marijuana Act, a 2001 statute that exempts registered users of marijuana from state criminal prosecutions for its possession. Doe began to smoke marijuana approximately three times a day.

In January 2003, a steel factory hired Doe as a temporary drill press operator. He continued to use marijuana but not at work. A few months later his new employer, Eugene, Ore.-based Emerald Steel Fabricators, told Doe that the company was interested in hiring him full-time. Knowing that he'd have to undergo a drug screening test, Doe told his boss about his medical condition and marijuana use. A few weeks later, he was fired.

Doe sued. He argued that he was disabled within the meaning of Oregon law and that Emerald Steel failed to accommodate his disability. After almost six years of litigation, the Oregon Supreme Court gave employers the guidance they needed. In Emerald Steel Fabricators v. Bureau of Labor and Industries, the en banc court ruled April 14 that an employer can fire a worker for using medical marijuana, even if he has a card from the state authorizing its use.

Fourteen states and the District of Columbia have passed laws legalizing the possession of marijuana for certain medical purposes. Similar legislation is under consideration in several other states. But marijuana possession is still prohibited under federal law. An unintended consequence has been a series of employment lawsuits testing the boundaries of employees' rights to use the drug off-duty.

“Employers need to deal with this issue now and think in advance about their response, because employees are asking about it,” says Nancy Delogu, a shareholder at Littler Mendelson.

State of the Law

So far, the courts that have considered the issue of whether employers need to accommodate medical marijuana users have responded with a resounding no. Marijuana is still illegal under federal law, and courts are hesitant to force employers to tolerate an illegal behavior, especially one that could pose a workplace safety risk. Washington, California, Montana, Oregon and Michigan courts have all considered the issue. But several lawsuits are still pending.

On April 2, the Washington Supreme Court agreed to review the case of a medical marijuana
patient who was fired for failing a drug test. TeleTech Customer Care Management hired a woman (referred to as “Jane Roe” in the suit) to answer phones. When hired, she told the company she used medical marijuana. Nonetheless, a week after she started the job she was terminated when her drug screen came back positive for cannabis. She sued in 2006. An appeals court held that the medical marijuana law provides a defense to criminal prosecution but does not protect users in employment situations. Although the state's highest court is taking that decision under review, most lawyers don't expect the overall policy to change.

“Even the most liberal states are coming down on the side of employers,” says Richard Meneghello, a partner at Fisher & Phillips. “Currently there is no case that would require an employer to accept a medical marijuana card as a legitimate reason for a positive drug test.”

But employers may still face liabilities.

Debra Friedman, a member at Cozen O'Connor, points out that when a worker tells his boss he uses medical cannabis, he may be putting the employer on notice that he has a disability that brings him within the protections of the Americans with Disabilities Act or relevant state laws.

While a federal court probably wouldn't penalize an employer for not accommodating a marijuana user, the employer may have an obligation to determine whether there are other fully legal medications that would enable the disabled employee to do the job before hastily deciding to fire him.

Statute Conflicts

More than half of states have laws prohibiting employers from taking action against employees who engage in certain legal off-duty activities. These laws are typically aimed at preventing employers from discriminating against individuals who smoke or drink alcohol off the job. Certain state statutes, such as those in Nevada and California, are written broadly–simply prohibiting discrimination based on any lawful off-duty conduct. Plaintiffs lawyers have yet to test whether these laws may offer some protection to authorized marijuana users.

But taking a more lax approach to medical marijuana also is fraught with potential liabilities for employers. Certain employers prefer to simply prohibit employees from coming to work under the influence of the drug. Meneghello counsels caution if adopting this approach.

“You can end up on the hook if [the employee] causes an injury while impaired,” he points out. “It would look terrible in court if the employer knew an employee could be under the influence of drugs and allowed him to work.”

Federal contractors that fall under the Drug Free Workplace Act or companies that employ drivers regulated by the Department of Transportation cannot be lax about employees' drug use, which is strictly prohibited by federal law. Experts counsel that the best approach is to clarify drug-testing policies now, so that workers are on notice that a medical marijuana card will not be considered a legitimate reason for a positive drug test.

Legislative Response

Meanwhile, some states are considering laws that would expand workplace protections for medical marijuana users. Hawaii House Bill 2847, currently in committee, would require employers to outsource drug testing of employees to an outside medical reviewer. If the reviewer determines that marijuana use doesn't pose a safety concern, he would report a negative drug screen to the employer.

Likewise, California is considering a ballot initiative that would prohibit employers from firing a person who tests positive for cannabis if he has a medical marijuana card. “Employers have to keep an eye on legislation and litigation to see if any states will go further,” Delogu advises.