To date 29 states and the District of Columbia have legalized marijuana for medicinal purposes. Some states (i.e., California) have been grappling with the implications of medicinal marijuana use for several years, while others (i.e., Pennsylvania) are just beginning to explore the complicated world of medicinal cannabis and its many tentacles. As a labor and employment law attorney, when it comes to medical marijuana, the question I am most asked is “what does medical marijuana mean for our workplace and/or our drug-testing policies?”

Given the dearth of state regulations and case law on the topic, answering this question is not easy. Generally, the answer to this question turns on two things: the medical marijuana legislation in the state(s) in which the company does business; and the company's overall temperament for medical marijuana usage. However, further clouding the answer is federal law. While a majority of states have jumped on the medical marijuana bandwagon, and nine have legalized recreational marijuana use, the federal government continues to classify marijuana as a highly controlled, Schedule I drug.

The Controlled Substances Act (CSA), federal legislation passed in 1970 as part of the Comprehensive Drug Abuse and Prevention Act, specifies how certain substances—such as marijuana—are regulated under federal law. Under the CSA, Schedule I drugs are those that have a high potential for abuse, have no currently accepted medical use and lack safety for use under medical supervision. Considering that the federal government has the power to control funding for certain companies (i.e., community health centers and colleges), regulate the business of others (i.e., transportation companies) and could utilize the full power of federal law enforcement, the federal classification of marijuana is not insignificant.

So, how does the federal treatment of marijuana inform an employer's actions regarding an employee using medical marijuana?

Regarding the enforcement of federal marijuana laws, the Rohrabacher-Blumenauer Amendment (formerly known as the Rohrabacher-Farr Amendment) is instructive. This amendment prohibits the U.S. Department of Justice from using federal funds to prevent state implementation of medicinal marijuana laws. Per the holding of the U.S. Court of Appeals for the Ninth Circuit in United States v. McIntosh, the amendment also “prohibits the DOJ from spending funds for the prosecution of individuals who engage in conduct permitted by the [state medical marijuana laws] and who fully complied with such laws.” Generally, this means that a medical marijuana patient who is in strict compliance with the medical marijuana laws of his resident state may not be prosecuted by the federal government for possession or use.

Regarding how medicinal marijuana will be treated for drug-testing purposes, U.S. Department of Transportation Regulations apply. Typically, a drug test cannot be certified as positive until a medical review officer verifies the result. For drivers subject to the Federal Motor Carrier Safety Act, Department of Transportation Regulations state that a medical review officer must verify as positive a confirmed test result for drugs, unless the employee presents a legitimate medical explanation for the presence of the drug in his system. In an updated “Medical Marijuana Notice” issued in the fall, the Department of Transportation stated plainly that the use of medical marijuana, pursuant to state law, does NOT constitute a legitimate medical reason for a positive drug test.

The DOT's Medical Marijuana Notice makes it clear that marijuana, in all forms, remains illegal under the CSA. Accordingly, the DOT expects that medical review officers will treat marijuana, whether used recreationally or medicinally, as a Schedule I illegal drug. Accordingly, the DOT notice provides that “Medical review officers will not verify a drug test as negative based upon information that a physician recommended that the employee use 'medical marijuana' … It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use marijuana.”

What about drug tests for employees not regulated by the DOT?

The DOT regulations nonetheless apply! The reality is that most medical review officers follow DOT testing guidelines for all drug tests. They do this to ensure consistency and predictability. Accordingly, even when a non-DOT regulated employee tells the medical review officer that he is certified to use medicinal marijuana, the medical review officer will nonetheless certify the test as positive. The medical review officer may include an external note to the employer that the employee claimed medicinal use. However, the medical review officer will not seek to confirm the employee's claim or to otherwise determine if the employee is a certified user under state law.

Finally, the Americans with Disabilities Act is instructive. After all, most individuals certified to use medical marijuana will be so certified because they suffer from a disability. Under the ADA, “qualified individuals with a disability” are protected from discrimination and are entitled to reasonable accommodation. Notably, however, the ADA provides that a person who is “currently engaging” in the illegal use of drugs is not a “qualified individual with a disability.” The ADA is a federal law and because the CSA states that all marijuana use is illegal, the ADA does not protect an individual currently using medical marijuana, even if the individual's use is compliant with his/her state's medical marijuana laws.

So, what is the federal take-away?

With the threat of federal prosecution removed (at least through September 2018), the federal treatment of medical marijuana will not deter employees who qualify under their state's medical marijuana laws from using medical marijuana. The caveat here will be with regard to employees whose jobs are regulated by federal law—for example CDL drivers.

Drug testing facilities will not help employers decide how to handle medical marijuana use. A positive drug test will be a positive drug test, regardless of the fact that the employee was using medical marijuana in accordance with state law. Accordingly, at the end of the day, where the employee is not regulated by federal law, the burden remains on the employer to decide, in accordance with its policies, how, if at all, the employee's medicinal marijuana use impacts employment status.

An individual using medical marijuana to treat a serious health condition, is not a qualified individual with a disability under the ADA. Although their serious health condition may constitute a disability, that the individual is “currently engaging” in the illegal use of drugs will remove them from ADA protection.

Employers reading that last bullet point, may be breathing a sign of relief. To those employers I say: Not so fast. We cannot forget about state law, a point three courts in New England made abundantly clear last summer.

In Barbuto v. Advantage Sales and Marketing, (Massachusetts), Noffsinger v. SSC Niantic Operation, (Connecticut) and Callaghan v. Darlington Fabrics (Rhode Island), prospective employees were denied employment, pursuant to neutral drug-testing policies, when their post-offer pre-employment drug test returned positive for marijuana. In all three cases, the prospective employees disclosed their use of medical marijuana to treat a disability. The employers filed motions to dismiss, arguing that federal law pre-empted state law and, thus, they were justified in denying employment under their neutral drug testing policies. The motions were denied. In allowing the suits to move forward, the courts recognized causes of action under state law disability discrimination statutes and under the discrimination clauses contained in the state medical marijuana acts.

The takeaways from these three cases is as follows:

Though the ADA may not protect disabled individuals using medical marijuana, state law disability laws (i.e., the Pennsylvania Human Relations Act) may.

Many state medical marijuana acts include a clause prohibiting discrimination based on an employee's status as a medical marijuana user. Pennsylvania is one of these states. Accordingly, summarily refusing to hire a prospective employee who discloses medical marijuana use may be prohibited.

Considering the above two points, employers should engage in the interactive process with an employee who discloses a disability and use of medical marijuana for that disability to evaluate the employee's ability to safely perform the essential functions of the job with or without reasonable accommodation.

State law also informs how employers interact with current employees who may be using or may consider using medical marijuana. Using Pennsylvania as the example, employers:

• May prohibit the use of medical marijuana on company premises and during working hours;
• May discipline an employee for being under the influence of medical marijuana while at work;
• May restrict an employee from performing certain safety sensitive positions while they are under the influence of medical marijuana; and
• Are not required to take any action that would violate federal law (i.e. allowing a medical marijuana user to perform a job requiring a CDL).

As employers undertake the burden of parsing the interaction between federal and state law and addressing medical marijuana use in their workplaces, they should consider the following:

• Whether they are regulated and funded by the federal government in a way that should impact their drug testing policies and their treatment of medical marijuana;
• The overall temperament of the company for medicinal marijuana use;
• The company's existing drug testing policies, definitions under the policies and whether revisions are necessary;
• The medical marijuana laws in the state(s) in which they operate and whether the laws allow employers to discipline for use of medical marijuana and, if so, in what contexts;
• Whether the laws allow employers to regulate medical marijuana use for safety sensitive positions and, if so, whether they employ any individuals in such safety sensitive positions; and
• The impact of the Americans with Disabilities Act and the state law component and their resulting obligations thereunder.

Employers would be wise to consult with counsel as they navigate this issue and should not wait until they are handed a positive drug test, noting medical marijuana use, to answer these questions.

Denise Elliott, a member of the McNees Wallace & Nurick's labor and employment practice group, 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, and safety and health issues. She can be reached at [email protected].