January 2010
The Impact of Medically-Prescribed Marijuana in the Workplace
by Michelle Reid, Esq.
EPS Consultant • Dallas/Fort Worth, TX
mreid@EPSpros.com
Employee, Kelly Martin, a software engineer, suffers from multiple sclerosis, an agonizing, debilitating and sometimes fatal disease affecting the central nervous system. To alleviate some of her symptoms, Kelly’s doctor recommends marijuana. The marijuana offers Kelly great relief for her pain. However, Kelly’s employer maintains a zero-tolerance drug-free policy and will terminate any employee who tests positive for drugs.
Kelly contends that her use of the drug is none of her employer’s business since she doesn't smoke at work or show up for work under the influence. Kelly believes that the use of marijuana is just like the use of any medication. Kelly thinks it’s just as unfair to penalize her for her use of prescribed marijuana as it would be to penalize another employee who had a prescription for Oxycodone, a narcotic and possibly addictive drug used for pain.
Michael Gilbert, an advertising executive, suffers from a rare form of cancer. Michael’s doctor prescribed marijuana to slow the growth of tumors, as well as to manage his pain. Michael was prescribed other narcotics that were not nearly as successful at controlling his pain. Michael smokes a marijuana cigarette before work, during his break and before he goes to bed. Michael claims that he is desensitized to any euphoric effect from the drug and that he would be unable to perform his job without it. Both Kelly and Michael claim that under the Americans with Disabilities Act (ADA), their employer is legally required to accommodate their medical condition.
In recent years in certain jurisdictions, legislation and case law permit the use of medical marijuana as a way to allow patients like Kelly and Michael to manage their symptoms from various illnesses. How does this affect employers? Do you have to accommodate an employee’s use of marijuana when it could potentially affect the employee’s performance or create safety concerns? Are you required to allow the employee time during the workday or provide a designated area for the employee to use the drug if the employee’s doctor recommended use throughout the day? If you must allow use of the drug, can you require that the employee not use the drug in the workplace? Can you forbid the use of medical marijuana altogether since it violates your “drug-free” policies?
Is Medicinal Marijuana Use in the Workplace Actually "Legal"?
Alberto R. Gonzales, Attorney General, et al. v. Angel McClary Raich, et al., No. 03-1454 (decided June 6, 2005, 125 S.Ct. 2195) was one of the first Supreme Court cases to address the use of medical marijuana. This case established that an employer may still refuse to accept a medical marijuana defense to a positive drug test even in states with medical marijuana laws. In Gonzales, the California medical marijuana state law conflicted with the federal Controlled Substances Act (CSA), which banned possession of marijuana. When the Drug Enforcement Administration (DEA) confiscated prescribed marijuana from a patient's home, a group of medical marijuana users sued the DEA and U.S. Attorney General, John Ashcroft. On June 6, 2005, the Supreme Court ruled in favor of the federal government, stating that the government may enforce the CSA’s ban on possession of marijuana even in states that decriminalize the use of medical marijuana.
However, the government took a major shift in October 2009, when current Attorney General, Eric Holder, announced that federal officials would no longer prosecute medical marijuana use that was allowed by state law.1 Currently, fourteen states have enacted laws that legalize the use of medical marijuana.2 Those states include Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington. These state laws were created to not only shield patients for their use of marijuana, but also to shield doctors from criminal penalties for recommending marijuana for treatment. All of the state laws are written with various controls including limitations on the quantity of marijuana a patient is permitted to possess at any one time and specified illnesses which qualify for use of medical marijuana.3 Although these states have enacted laws and Attorney General Holder has taken a “hands off” approach, the courts are demonstrating that there are still a number of limitations to the legislation.
In Washington state, “Jane Roe” was offered a position at TeleTech, upon completion of a negative drug test. Less than one week after she began working, her drug tests returned with positive results. Roe stated that her physician prescribed medical marijuana for her migraine headaches when other treatments offered little relief. TeleTech refused to provide any exceptions to their rule of a drug-free work environment and terminated Roe. Roe filed a lawsuit claiming wrongful termination and violation of the Washington State Medical Use of Marijuana Act (“MUMA”). The trial court dismissed Roe’s case. The Washington Court of Appeals affirmed summary judgment in favor of the employer finding that MUMA provided only a defense against criminal prosecution for the possession of marijuana. The Court concluded that MUMA was not created to force employers to accommodate the use of marijuana, but only to provide a defense to criminal prosecution to qualifying marijuana users. Roe v. TeleTech Customer Care Management, Court of Appeals of Washington, No. 38531-7-II (9/15/09).
Does Medical Marijuana Use Require a Reasonable Accommodation?
The ADA requires an employer to make a reasonable accommodation to the known disability of a qualified applicant or employee. Therefore, questions remain about whether an employer can truly enforce a “zero tolerance” policy of drug use by employees.
In an Eastern District of Washington case, Barber v. Gonzales, 2005 U.S. Dist. LEXIS 37411 (2005), the court rejected Plaintiff’s argument that the ADA protected disabled individuals who used medical marijuana, despite the state law permitting the use of medical marijuana. Similarly, in Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008), an employee argued that he was wrongfully terminated after failing a drug test. The employee claimed that his employer failed to reasonably accommodate his disability. The California Supreme Court noted that marijuana is not treated the same as any legal prescription drug. The court held that despite the legality of medical marijuana under state law, it is illegal under the CSA and is not afforded protection under the ADA. The Montana Supreme Court recently reached a similar conclusion. The court held in Johnson v. Columbia Falls Aluminum Co., LLC, 2009 MT 108N (MT 2009), that an employer is not required to accommodate medical marijuana use even though a state law decriminalizes the use of medical marijuana.
But employers should not celebrate prematurely. An Oregon Court of Appeals reached a very different outcome. In Emerald Steel Fabricators v. Bureau of Labor and Industries, 220 Or App 423, 186 P3d 300 (2008), Complainant worked as a temporary employee hired through a staffing agency. The company informed Complainant that he was must pass a drug test in order to become a permanent employee with Emerald Steel Fabricators (ESF). However, the company did not provide Complainant with a copy of the drug testing policy. The employee later informed ESF that he was using medical marijuana to alleviate nausea. ESF terminated Complainant. Complainant then filed a complaint with the Oregon Bureau of Labor and Industries (OBLI) claiming that he was discriminated against because of his disability. The OBLI found in favor of the Complainant, stating that ESF did not reasonably accommodate his disability. It is interesting to note, however, that the OBLI’s conclusion was not based on the facts of the case, but instead on a technicality. During the administrative hearing, ESF improperly failed to raise the defense that marijuana was illegal under the CSA and was not required to be accommodated. ESF appealed, but the Court of Appeals sided with Complainant based on the technical error. Because the findings were not based on the merits of the case, this provides little support in favor of employers’ acceptance of the use of medical marijuana as an ADA accommodation in the workplace.
What Does This Mean for Employers?
Employers in all states should take heed to the issues that may be implicated from an employee’s use of medical marijuana. Regardless of the state laws, the Occupational Safety and Health Act (OSHA) requires that employers provide a safe workplace. The ADA also does not require employers to accommodate a condition that may pose a threat or harm other employees. Thus, issues of safety trump the use of marijuana or any drug that may create an unsafe work environment. Additionally, while a number of states permit medical marijuana use, the DEA continues to categorize marijuana as a Schedule One drug, meaning that it is addictive and provides no medical use. However, before strictly enforcing a “zero-tolerance” policy or firing an employee for the use of medical marijuana, employers should consider several precautions:
- Carefully review their state laws related to the use of medical marijuana. As stated, each state statute contains a number of limitations. For example, in Alaska, the medical marijuana law states that no accommodation is necessary for the use of marijuana in any place of employment.4 It makes good business sense for employers to become familiar with their state’s requirements and limitations regarding the use of medical marijuana.
- It is also important to remember that the state laws are inconsistent with federal laws. Because of these inconsistencies and lingering questions, employers should review their current policies related to drugs and ensure that they address the issue of medical marijuana usage. As there are no current laws permitting use in the workplace, the drug policy is free to prohibit employees from possessing, selling and using drugs or being under the influence of drugs in the workplace.
- If an employee discloses that she has a disability and is authorized to use medical marijuana, consider meeting with the employee to discuss whether there are any other equally-effective treatments that will allow the employee to perform the essential functions of the job.
- If the job is safety-sensitive5 subject to regulations prohibiting on or off-work drug use, an employer should enforce its zero-tolerance drug-free workplace policy, regardless of state laws authorizing some individuals to use medical marijuana.
- Although the ADA and case law have not made a case for providing accommodations for medical marijuana use, it is still important to make sure that individuals are not discriminated against because of their use of medical marijuana. Regardless of state laws, companies should always ensure that individuals are tested for drugs in a consistent, fair and non-discriminatory manner. To avoid discrimination claims, employers should also respond in a consistent manner to positive drug test results from authorized medical marijuana users. If a company decides to provide exceptions for authorized medical marijuana users, those exceptions should also be provided in a uniform manner.
As the state laws continue to progress in this area and the federal government continues its “hands-off” approach, it is unclear what will happen when employees claim wrongful termination after a discovery of marijuana use. Therefore, it is always a good idea to consult a human resources professional or legal counsel prior to terminating an individual who is not in a safety-sensitive position.
[1] www.justice.gov Attorney General Holder stated that this would not apply to drug traffickers or those who used marijuana recreationally. Strict guidelines were created that outlined the individuals who could avoid prosecution. Those guidelines can be found at http://blogs.usdoj.gov/blog/archives/192.
[2] http://medicalmarijuana.procon.org
[3] For example, Chapter 69.51A of the Revised Code of Washington does not permits the use of medical marijuana for all illnesses and conditions. Some of the illnesses for which marijuana use has been approved include chemotherapy-related nausea and vomiting in cancer patients; AIDS; wasting syndrome; muscle spasms associated with multiple sclerosis and other spasticity disorders; epilepsy; and acute or chronic glaucoma.
[4] Alaska Stat. § 17.37.040(d)
[5] The Office of Drug and Alcohol Policy Compliance of the U.S. Department of Transportation (DOT) will not allow a transportation employee to transport the public following a positive test for drugs.
About the Author
Michelle Reid, Esq., provides employment-related training and consulting to employees, managers and executives, on such topics as diversity, harassment, discrimination and maintaining a respectful workplace. Michelle also conducts internal employee investigations of harassments or discrimination claims. Michelle has over eight years of experience with the federal government in the area of employment, labor and administrative law. She is also a trained mediator. Michelle obtained her Bachelor of Arts degree from the University of Louisville and her Doctor of Jurisprudence from Howard University School of Law. Michelle is based in the Dallas/Fort Worth area and can be contacted at mreid@epspros.com