Medical. Marijuana. and the Workplace

Medical Marijuana and the Workplace By Carolyn Ladd

I tried marijuana once. I did not inhale. President Bill Clinton When I was a kid I inhaled frequently. That was the point. President Barack Obama Joseph Casias, a 30-year-old father of two, has sinus cancer and an inoperable brain tumor. He worked for five years at the Wal-Mart in Battle Creek, Mich. and is a former Associate of the Year. Casias obtained medical marijuana to treat chronic pain in accordance with the Michigan Medical Marihuana Act (MMMA). He was drug tested after he had an on-the-job knee injury. He tested positive for marijuana and his employment with Wal-Mart was terminated. Casias, represented by the American Civil Liberties Union (ACLU), sued Wal-Mart for wrongful termination in violation of public policy and for breach of the MMMA. 1 On Feb. 11, 2011, Judge Jonker of the Western District of Michigan dismissed Casias lawsuit because the MMMA only provides a potential defense to criminal prosecution it does not regulate private employment. The ACLU has vowed to appeal. ACC Docket 59 April 2011

With the passage of Proposition 203 in Arizona in November 2010, a total of 15 states have enacted medical marijuana laws. (See sidebar on page 53.) The laws generally provide for an affirmative defense to prosecution under state law if medical marijuana is used with physician approval for various medical conditions. For example, the California Compassionate Use Act of 1996 provides that people suffering from conditions such as cancer, anorexia, AIDs, chronic pain, spasticity, glaucoma, arthritis, migraines or any other illness for which marijuana provides relief are not subject to criminal prosecution if they use marijuana upon the recommendation of a physician. 2 All 15 states have a catchall provision that allows the use of medical marijuana for severe pain. Medical marijuana use is widespread: Since 2004, when California counties began issuing Medical Marijuana Identification Cards, 42,485 cards have been issued to patients. 3 Do state medical marijuana laws protect users from being fired? If an employee has a disability, legally obtains medical marijuana to treat it and tests positive for marijuana in a drug test at work, does the employer have to excuse the positive drug test as a reasonable accommodation for the employee s disability? Medical marijuana and federal law Controlled Substances Act Marijuana is categorized as a Schedule I drug under the Controlled Substances Act and therefore has no currently accepted medical use in treatment in the United States. 4 The United States Supreme Court held in Gonzales v. Raich 5 that people using medical marijuana under the California Compassionate Use Act could be prosecuted under the Controlled Substances Act. However, on Oct. 19, 2009, the US Department of Justice (DOJ) issued a memorandum instructing US attorneys in states with medical marijuana laws to not expend resources to prosecute individuals using medical marijuana in compliance with state law. 6 Department of Transportation drug testing A positive drug test result because of medical marijuana use will not be excused for safety-sensitive workers tested pursuant to the US Department of Transportation s (DOT) requirements. 7 (Safety-sensitive employees subject to DOT testing include pilots, aircraft maintenance workers, school bus drivers, truck drivers, train engineers and subway operators, among others.) Three days after the DOJ instructed US attorneys not to prosecute criminal cases involving medical marijuana, the DOT issued a statement affirming that employees in DOT safety-sensitive positions cannot use medical marijuana: Please note Carolyn Ladd is senior counsel at The Boeing Company. (She passed her pre-employment drug screen with flying colors.) A graduate of the University of Washington, Ladd received a Juris Doctor from the University of Oregon and a Master of Laws (Labor Law) from Georgetown University. She can be contacted at carolyn.h.ladd@ boeing.com. that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety-sensitive employee subject to drug testing under the DOT s drugtesting regulations to use medical marijuana. 8 Because of marijuana s classification as a Schedule I drug under the Controlled Substances Act, the federal government simply does not recognize the medicinal use of marijuana. Therefore, employers subject to DOT drug-testing requirements do not need to excuse a positive drug test for marijuana, even if the person is authorized to use medical marijuana by state law. The DOT regulations do not require an employer to terminate an employee who tests positive, but they do require that the employee be seen by a substance abuse professional, complete a treatment plan and test negative on a drug test before returning to safety-sensitive work. Federal contractors The federal Drug-Free Workplace Act of 1988 (DFW) 9 requires some federal contractors and all federal grantees to agree that they will provide a drug-free workplace as a precondition of receiving a contract or grant from a federal agency. The DFW does not require drug testing, but it does require the contractor or grantee to: inform employees that use or possession in the workplace of a controlled substance is prohibited; have a drug-free awareness program for employees; require employees to report drug-related convictions; and report those convictions to the government. A contractor or grantee must make good faith efforts to comply with DFW or face penalties including suspension of payment, termination of the contract or grant, or debarment for up to five years. Although the DFW does not require drug testing, certain federal agencies including the Department of Defense, the Department of Energy, the Nuclear Regulatory Commission, and the National Aeronautics and Space Administration have regulations that require contractors to have drug-free workplace programs that include drug testing for controlled substances. Americans with Disabilities Act The Americans with Disabilities Act (ADA) does not require that an employer excuse a positive drug test as an accommodation for a disabled employee using medical marijuana. The ADA regulations specifically state that a person is not considered a qualified individual with a disability if currently engaging in the illegal use of drugs, when the [employer] acts on the basis of such use. 10 Illegal drugs are defined as controlled substances listed under the Controlled Substances Act, which includes marijuana. 11 ACC Docket 60 April 2011

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An employer with a drug-free workplace policy can fire an employee for disclosing the use of medical marijuana, whether or not the employee is impaired on the job or tests positive. Medical marijuana and state employment laws Arizona The new Arizona law provides explicit employment protection for those testing positive on a drug test due to medical marijuana. Unless it would cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer cannot discriminate against an employee for testing positive while using medical marijuana, unless he possessed marijuana on the employer s premises or was impaired on the employer s premises during work hours. 12 It is not entirely clear when an employer is subject to lose a monetary or licensing-related benefit under federal law or regulations. For example, can a federal contractor or grantee comply with the Drug Free Workplace (DFW) Act even if it allows an employee who tests positive for medical marijuana to continue working? The DFW Act requires that an employer provide training and report any drug related convictions of its employees to the government, but does not require drug testing. Denial of a right or privilege Some of the medical marijuana laws say that a user of medical marijuana shall not be denied any right or privilege, which plaintiffs lawyers have argued implies employment protection to medical marijuana users. For example, the Maine and Rhode Island laws provide that a qualifying patient cannot be denied any right or privilege such as disciplinary action by a business or occupational or professional licensing board. Whether that language provides employment protection for medical marijuana users or it only provides protection to medical professionals who might face discipline has yet to be seen. The left coast The employment law regarding medical marijuana use is best developed on the West Coast because those states have some of the oldest medical marijuana laws. In Cali- fornia, Oregon and Washington, employers can decline to hire an applicant or terminate an employee who tests positive for marijuana even if the applicant or employee is authorized to use medical marijuana. An employer with a drug-free workplace policy can fire an employee for disclosing the use of medical marijuana, whether or not the employee is impaired on the job or tests positive. This is true even where the employee is not working in a safety-sensitive job, such as system analyst or customer service representative. California: Ross v. Ragingwire Telecommunications, Inc. 13 After failing to obtain pain relief from other medications for chronic back pain, Gary Ross physician recommended he use medical marijuana under the California Compassionate Use Act. Ross was hired by Ragingwire Telecommunications as a systems analyst, with the condition that he pass a drug test. Ross employment was terminated after he tested positive for marijuana in a pre-employment drug test. He sued under California s Fair Employment and Housing Act (FEHA), alleging that his employer should have accommoddated his disability by allowing him to use medical marijuna at home essentially asking that the employer waive its policy requiring a negative drug test for new hires. He also alleged wrongful termination in violation of public policy. The California Supreme Court rejected both of Ross claims. It held that because marijuana remains illegal States with Medical Marijuana Laws State Citation Alaska Alaska Stat. 17.37.10-17.37.80. Arizona www.azsos.gov/election/2010/info/ pubpamphlet/sun_sounds/english/prop203.htm. California Cal. Health & Safety Code 11362.5. Colorado C.O. Const. art. XVIII, 14. Hawaii Haw. Rev. Stat. 329-121 to 329-128. Maine Me. Rev. Stat. Title 22, 2421-2430A. Michigan Mich. Comp. Law 333.26421 333.26430. Montana Mont. Code 50-46-1. Nevada Nev. Rev Stat. 453A. New Jersey New Mexico N.J. Stat. 24:6I. N.M. Stat. 26-2B. Oregon Or. Rev. Stat. 475.300 475.346. Rhode Island R.I. Gen. Laws 21-28.6-4. Vermont Vt. Stat. tit. 18, 4472 4474d. Washington Wash. Rev. Code 69.51A.005 69.51A.900. ACC Docket 62 April 2011

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One of the challenges for employers in proving impairment at work is that unlike alcohol, metabolism rates for marijuana vary widely, and a positive test may indicate use days earlier but not current impairment. under federal law, FEHA does not require employers to accommodate the use of illegal drugs. The California Compassionate Use Act merely exempts a medical marijuana user from criminal liability under state law; it does not provide job protection. Ross claim for wrongful termination in violation of public policy failed because, Nothing in the [Compassionate Use Act s] text or history indicates the voters intended to articulate any policy concerning marijuana in the employment context, let alone a fundamental public policy requiring employers to accommodate marijuana use by employees. 14 Shortly after the California Supreme Court decided Ross v. Ragingwire, the California legislature passed AB 2279 that would have prohibited employment discrimination against medical marijuana users based on a positive drug test. 15 The bill was vetoed by Governor Arnold Schwarzenegger, who was concerned about the interference with employment decisions as they relate to marijuana use, and said that there was no voter intent to protect employment when voters passed the Compassionate Use Act in 1996. 16 Oregon: Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries 17 The employee, who was not identified by name in the case, worked as a drill press operator at a steel manufacturer. He was hired on a temporary basis, hoping to get hired on a permanent basis, which would require that he pass a pre-employment drug test. He disclosed to his manager that he had a medical marijuana registry card issued under the Oregon Medical Marijuana Act. (He obtained the card because he suffered from anxiety and panic attacks, nausea, vomiting and severe stomach cramps that made it difficult for him to eat.) The employer fired the plaintiff a week after he disclosed his medical marijuana use. The plaintiff then filed a complaint with the Oregon Bureau of Labor and Industries (BOLI) alleging that the employer failed to accommodate his disability under Oregon law. BOLI sued the employer on the employee s behalf. The Oregon Supreme Court ruled for the employer, holding that under the Supremacy Clause of the US Constitution, the Oregon Medical Marijuana Act cannot authorize the use of medical marijuana because that is in conflict with the Controlled Substances Act. Further, the court ruled, an employee is not protected by the Oregon disability discrimination law if he is currently engaged in the illegal use of drugs, and the employer discharged the employee for that use. Washington: Roe v. TeleTech Customer Care Management 18 The plaintiff, who sued under the pseudonym Jane Roe, was hired as a telemarketing customer service consultant conditioned on her passing a drug test. She had authorization from a doctor to use medical marijuana under the Washington State Medical Use of Marijuana Act (MUMA) for migraine headaches. She was terminated when she tested positive for marijuana. The plaintiff sued, advancing two legal theories: (1) that MUMA implies a civil cause of action to sue an employer, and (2) that she was wrongfully terminated in violation of public policy. The Washington Court of Appeals ruled in favor of the employer. First, the court held that the voters did not intend to impose any duty on employers to accommodate employee use of medical marijuana. Rather, MUMA was intended to create an affirmative defense to state criminal prosecutions for medical marijuana. Second, the court rejected the plaintiff s wrongful-termination-in-violationof-public-policy claim because she could not show a clear public policy in the law that grants employment rights to medical marijuana users. The Washington Supreme Court granted review of this decision and an oral argument was held in January 2011. Interestingly, after Roe s employment was terminated, the Washington legislature amended MUMA to add the words on-site to the following provision: Nothing in this chapter requires any accommodation of on-site medical use of marijuana in any place of employment.... 19 Roe argues in her brief to the Washington Supreme Court that this change requires an employer to accommodate an employee s off-site use of medical marijuana. 20 Although Jane Roe did not bring a disability discrimination complaint under the Washington Law against Discrimination, the possibility of a plaintiff bringing a successful claim for failure to accommodate a disability under ACC Docket 64 April 2011

ACC Extras on Substance Use and the Workplace Quick References Drug-Free Workplace Policy (Nov. 2010). This document is a sample basic drug-free workplace policy. www.acc.com/quickref/drugfree_nov10 Alcohol and Controlled Substance Policy (July 2008). This document is an alcohol and controlled substance testing policy to be read and acknowledged by commercial drivers for the company. www.acc.com/quickref/cs-pol_jul08 Article Drug and Alcohol Misuse in the Workplace (July 2002). This article discusses the privacy issues raised in employee drug and alcohol testing. www.acc.com/drug&alc_jul02 ACC has more material on this subject on our website. Visit www.acc.com, where you can browse our resources by practice area or search by keyword. Even the new Arizona law, which explicitly extends employment protections to medical marijuana users, allows an employer to prohibit use and possession on its premises and employees being impaired at work. One of the challenges for employers in proving impairment at work is that unlike alcohol, metabolism rates for marijuana vary widely, and a positive test may indicate use days earlier but not current impairment. Claims against employers Casias v. Wal-Mart illustrates the tension between an employer s desire for a drug-free workplace and the interests of a seriously ill employee who is using medical marijuana as allowed by state law. The Casias case has received national media attention, and there is even a Facebook page supporting Casias and his lawsuit against Wal-Mart. Creative plaintiffs lawyers with sympathetic clients will likely continue to assert employment claims based on explicit or alleged implied employment protection in the medical marijuana laws, failure to accommodate a disability under state disability law, and wrongful termination in violation of public policy. Have a comment on this article? Visit ACC s blog at www.inhouseaccess.com/articles/acc-docket. Washington state law seems unlikely. The Washington State Human Rights Commission (which enforces the state s discrimination law) has announced that it will not take disability discrimination complaints regarding the use of medical marijuana because it would not be a reasonable accommodation of a disability for an employer to allow an employee to violate federal law. Advice for employers Prohibit use, possession and impairment Employers concerned about preventing illegal drug use should have a written drug-free workplace policy that: prohibits the use and possession of all controlled substances on the employer s premises; prohibits employees from being under the influence of any controlled substance at the worksite and while working; and provides for reasonable suspicion drug testing when an employee appears impaired at work. notes 1 Casias v. Wal-Mart Stores, Inc., No. 1:10cv781 (W.D. Mich.). 2 Cal. Health & Safety Code, 11362.5(b)(1). 3 www.cdph.ca.gov/programs/mmp/pages/mmpcarddata.aspx. 4 21 U.S.C. 812. 5 545 U.S. 1 (2005). 6 www.justice.gov/opa/documents/medical-marijuana.pdf. 7 49 C.F.R. 40.151(e). 8 www.dot.gov/ost/dapc/documents/medicalmarijuananotice.pdf. 9 41 U.S.C. 701. 10 29 C.F.R. 1630.3(a). 11 29 C.F.R. 1630.3(a)(2). 12 www.azsos.gov/election/2010/info/pubpamphlet/ Sun_Sounds/english/prop203.htm. 13 174 P.3d 200 (Cal. 2008). 14 Id. at 208. 15 http://info.sen.ca.gov/pub/07-08/bill/asm/ab_2251-2300/ ab_2279_cfa_20080816_150551_sen_floor.html. 16 http://gov.ca.gov/pdf/press/ab2279_leno_veto_message.pdf. 17 230 P.3d 518 (Or. 2010). 18 216 P.3d 1055 (Wn. Ct. App. 2009), review granted 228 P.3d 19 (Wash. 2010). 19 RCW 69.51A.060 (emphasis added). 20 2010 WA S. Ct. Briefs LEXIS 35 (Wash. June 23, 2010). ACC Docket 66 April 2011

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