Human Capital Management, Risk Management

CannaBiz: Medical Marijuana in the Workplace

/ July 16, 2018 July 16, 2018

Employment discrimination lawsuits arise when an aggrieved employee believes they have suffered disparate treatment or receive a disparate impact based on gender, race, age, or disability.  While drug use or dependency was never considered a protected disability in the United States, the passage of medical marijuana statutes have now made consuming cannabis or its derivatives a legitimate course of medical treatment in certain states and territories.

Presently, medical marijuana is legal in 30 states, eight of which have gone so far as to legalize recreational use; forty-six states permit the consumption of CBD oil – a non-psychoactive compound found in cannabis – with a doctor’s recommendation.   Despite the broad recognition of marijuana as a medicinal tool at the state level, marijuana and its derivatives are presently classified as a Schedule I substance  by the Drug Enforcement Agency, and treated as unequivocally illegal at the federal level.   Schedule I substances are defined as those with very high abuse potential and “no currently accepted medical use,” a distinction that effectively contradicts and supersedes all state-level legislation.

This dichotomy presents employers in legalized marijuana states with a difficult question: “how can I simultaneously enforce a drug-free workplace policy and accommodate an employee’s off-duty use of prescribed medication?”

Under virtually every state law that legalizes marijuana use (medicinal or otherwise), employers have an explicit right to prohibit their employees from using or being under the influence of marijuana at work or during work hours, regardless of whether or not the patient is being advised by a doctor.   Similarly, employers in medical marijuana states are under no obligation to forego pre-employment or on-the-job drug screenings.   In this regard, the administration of a drug-free workplace policy remains unchanged.

However, employment disputes can and do arise in when the state’s marijuana law does not address employers’ rights to prohibit off-duty marijuana use; the incongruence between state and federal regulations create uncertainty around the degree – if any –  to which an employer’s adverse response to off-duty use constitutes employment discrimination.   In fact, recent court cases have resulted in disparate judgements on these very subjects:

  • In Ross v. Raging Wire Telecommunications, issued on Jan.  24, 2008, the California Supreme Court held that an employee did not have the right to sue his employer for terminating his employment based on off-duty medical marijuana use, which was legal under the California Compassionate Use Act (CUA).  The court held that the state’s Fair Employment and Housing Act, under which the employee brought a disability discrimination claim, does not require employers to accommodate the use of drugs that are illegal under federal law
  • In Barbuto v. Advantage Sales and Marketing, issued on July 17, 2017, the Massachusetts Supreme Judicial Court rejected an employer’s argument that the federal CSA renders an employee’s off-duty use of marijuana an “unreasonable” accommodation for her disability under the Massachusetts Anti-discrimination Act (MADA).  Noting that the federal CSA does not put an employer at risk of prosecution for its employees’ possession of marijuana, the court held that because the Massachusetts Medical Marijuana Act specifically allows employers to prohibit on-site marijuana use by employees, it “implicitly recognizes” that allowing off-site use “might be” a permissible accommodation for disability under the MADA. 

As the above rulings illustrate, the legitimacy of any adverse action taken towards a medical marijuana employee-patient depends on many factors, not least of all jurisdiction, state labor laws, and employment history.   As presented in the California and Massachusetts court cases, the defendants’ principal arguments both centered on marijuana’s prohibition under federal law, but each experienced a different outcome.   In light of judicial and legislative inconsistencies, what, then, is a prudent employer to do when it becomes aware of an employee’s medicinal marijuana usage?  For organizations operating in Pennsylvania, the Pennsylvania Medical Marijuana Act of 2016 established a state medical marijuana program, and affected employment practices in the following notable ways:

  • Employers are generally prohibited from discharging, threatening, refusing to hire, or otherwise discriminating or retaliating against an employee…solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.
  • The law does not:
    • Require an employer to make any accommodation of the use of medical marijuana on the property or remises of employment
    • Limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace
    • Require an employer to commit any act that would violate federal law.
  • A medical marijuana patient can be prohibited by an employer from:
    • Performing any task that the employer deems life-threatening, or could result in a public health or safety risk, while under the influence of medical marijuana.

Unsurprisingly, the 2016 Pennsylvania law echoes those of other states in its blanket prohibition of medical marijuana while on-the-job, but also in its attempt to establish employee protections for off-the-job usage.   From this, we can envision a number of scenarios for which this law might provide guidance:

  1. An employee suffers an accident at work, and the subsequent urinalysis is positive for THC (a chemical compound found in marijuana) metabolites.  The employee is a medical marijuana patient, but is nonetheless terminated for a positive urine screen following an accident. Unless the employer can prove that marijuana intoxication was the proximate cause of the injury or accident, the employee’s termination was unjust, in accordance with Pennsylvania law.

  2. A prospective employee is hired pending a satisfactory pre-employment drug screening. The prospective hire is a medical marijuana patient, and his drug screening results are positive for THC metabolites.   After the hiring manager reviews the results, she revokes the offer of employment. Unless the position for which the prospective hire is applying has public health or safety implications, the revocation of offer of employment violates the Pennsylvania Medical Marijuana Act of 2016.  

Much, if not all, of the residual uncertainty surrounding prescription marijuana is rooted in the federal government’s rejection of the claim that cannabis has medicinal value.  So stark is the difference in opinion that any federal contractor or grantee – regardless of state of residence – must adopt a similar zero-tolerance approach towards medical marijuana.  However, on June 25th, 2018, the FDA took the monumental step of approving Epidolex – a CBD-based medication – for treatment of severe forms of epilepsy, making it the first FDA approved cannabis-comprised drug since the passage of the Controlled Substances Act in 1970.   It is still too early to speculate the degree to which this will shift the legal landscape around medical marijuana in the workplace, but it reflects a change in the federal government’s view on the medicinal properties of marijuana – namely, that they exist.

The federal government’s acknowledgement of at least some of marijuana’s medicinal uses may cause or hasten its reclassification from a Schedule I drug.   At that point, it will be reasonable to expect an even greater acceptance of medical marijuana, and nation-wide approval of CBD-based medications.   With this in mind, one can begin to speculate on how generally accepted employment practices may evolve around this issue – future legislation or legislative amendments will likely only serve to further protect medical marijuana patients and, with the exception of intoxication at work, likely afford them the same status as other prescription pain medications.  Rather than run the risk of letting unconscious biases or outdated laws inform managers’ personnel decisions, employers must take precautions to ensure that managers and Human Resources staff are informed and updated about the legal status of medical marijuana at the federal, state, and individual employer level.

 

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