Within the last decade nearly half of U.S. states have approved some form of medical marijuana usage. Within the last five years, many states have decriminalized recreational marijuana use altogether. The push for voter review of this issue in states that have not addressed it continues in earnest from various interest groups.
All the while, marijuana has remained illegal as a Schedule I substance in the federal Controlled Substances Act. This distinction has caused headaches for many employers. Questions surrounding the balance of permissive-use with prohibited substances is an evolving legal issue affecting many employers, including glaziers and fenestration companies.
At its most generic, employers still maintain the right to set the conditions of the workplace. Employees should not be permitted to come to work impaired, be that from marijuana, alcohol or any other controlled substance. In fact, federal contractors and many states require compliance with the Drug-Free Workplace Act. This act requires a zero-tolerance approach toward drug usage in the workplace, and enforcement of such policies remains in place even in the face of the “legalization” of marijuana.
Beyond the Drug-Free Workplace Act, there are other independent sources that restrict all use of Schedule I drugs. For example, the Omnibus Transportation Employee Testing Act imposes limitations on holders of certain commercial driver’s licenses. Equally, employers are generally free to adopt a zero-tolerance approach if they choose to do so.
Zero-tolerance policies are the most stringent approach and have been enforced even in the face of challenges under the Americans with Disabilities Act. The federal ADA excludes itself from applying where a qualified individual with a disability is currently engaging in the illegal use of drugs. Based on that fact, many employers have successfully challenged the need to make accommodations for employees using marijuana, even if the employee does so with a doctor’s guidance. However, many of the statutes enacting medical marijuana have sections compelling employers to make an accommodation under state anti-discrimination schemes, and avoid commenting on the federal statutes. In states where statutes are unclear, courts have often ruled in favor of employers.
Testing for drugs also generally remains within the control of the employer. As a Schedule I substance, marijuana is illegal and can be within the scope of drug testing required by an employer. Wrongful termination cases centering on drug testing in permitted-use states have been percolating through the legal system for some time. For example, the United States Court of Appeals for the Sixth Circuit held that Wal-Mart could fire an employee when a drug test following a work-related accident showed illegal drug use. (Casias v. Wal-Mart Stores, Inc., 695 F. 3d 428, 6th Cir. 2012). It issued this holding even though the tracers for marijuana use—THC compounds—stay in the body for many days after use, unlike alcohol, and there was no temporal tie to the injury and the drug use.
Because testing for marijuana can identify use that occurred days before, it can capture off-duty activities. In those states where marijuana has been decriminalized, there is a tension between whether employers can take action on a positive result that is not tied to any particular workplace event or impairment. In the 2015 Colorado case of Coats v. Dish Network, the employee was terminated after a positive test because of the employer’s zero-tolerance policy. In upholding the right of Dish Network to terminate the employee, the Colorado Supreme Court drew lines suggesting the voters’ decision to decriminalize marijuana use and possession did not create a right, or provide inherent permission, to use marijuana given its continuing status as a Schedule I substance.
There are many issues surrounding this developing area of the law that complicate employers’ risk mitigation strategies. Some recommendations:
- As a practical matter employers must review the status of their state’s treatment of marijuana and all Schedule I substances.
- Employers in states permitting medical usage of marijuana, or that have decriminalized its recreational use, should review and revise their drug and alcohol plans to specifically provide for their use and any attending consequences.
- Consideration of the issues surrounding off-hours use is also advisable, as is specifically identifying any response to positive test results.
- Communication of a revised policy to employees is also essential so that there are fewer opportunities for ambiguities or misunderstandings.
- And, finally, consistent enforcement of the policy, whatever it may be, is essential to ensuring that legal defenses to any wrongful termination claim do not go up in smoke.
