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As labor/employment laws and
other laws continue to change, along with adding laws, HR professionals have to
be ready for these changes guess what – before they even take place. Sixteen
states and D.C. have medical marijuana laws in place: Alaska, Arizona,
California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New
Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Despite these laws being in place on a state
level, medical marijuana is illegal on the federal level.
Medical marijuana laws are
designed to provide an alternative therapeutic option to people with chronic or
debilitating conditions, such as cancer, HIV/AIDS, glaucoma, multiple
sclerosis, major depression, or severe back pain. Employees suffering from
these conditions are protected under the Americans with Disabilities Act and
provided appropriate accommodations not involving medical marijuana use, such
as providing leave to seek treatment.
While medical marijuana is
utilized in the workplace, the employer also has to be conscious of
Occupational Safety and Health Act (OSHA), by providing a safe work place for
all its employees. Studies have shown that marijuana-using employees are more
prone to accidents, injuries, and absenteeism. If an employee is in a safety-sensitive
position, marijuana use is likely not a reasonable option. When an employer is
notified by an employee that he/she has obtained a medical marijuana
recommendation, (generally, not called a “prescription” as the drug is
FDA-approved), the employer should consider if the employer should otherwise be
considered disabled under the ADA (American’s Disability Act) and further
explore if there is reasonable accommodation other than marijuana use is
available. If an employee must be
licensed in accordance with federal law to perform duties such as commercial
driving, marijuana use is not an option at all.
Only a handful of cases have
resulted in decisions to provide guidance to employers regarding their
potential liability in these situations. Almost all cases have supported
employers who have attempted to keep medical marijuana out of the workplace.
Court Ruling
One such case is a 2011 Washington
Supreme Court case held that the Washington Medical Use of Marijuana Act does
not create a private cause of action for discharge of an employee who uses
medical marijuana, either expressly or impliedly. Further, the Court found the
act did not create a clear public policy to support a wrongful discharge in
violation of a public policy claim and further noted “Nothing in this chapter
required any accommodation of any on-site medical use of marijuana in any place
of employment… “. Roe v. TeleTech Customer
Care Mgmt. (Colo.) LLC,
2011 Wash. LEXIS 393, No. 83768-6 (Wash. June 9, 2011)
Some state have written
protections for medical marijuana users directly in their statutes:
Example: Arizona
statue states that “Unless failure to do so would cause an employer to lose a
monetary or licensing related benefit under federal law or regulations, an
employer may not discriminate against a person in hiring, termination or
imposing any term or condition of employment or otherwise penalize a person
based upon either: (1) the person's status as a cardholder [or] (2) a
registered qualifying patient's positive test for marijuana components or
metabolites, unless the patient used, possessed or was impaired by marijuana on
the premises of the place of employment or during the hours of employment." Ariz. Rev. Stat. § 36-2813 (2011).
Because the issue of medical
marijuana in the workplace is still in its infancy, employers and those who advise
them should keep their eyes on court and legislative developments in their
respective states. Employers, for now, appear to have plenty of defenses for maintaining
the status quo in their drug testing programs or drug-free workplace policies.
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All-4-HR & Business Solutions is Blogging.
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