After years of working to establish drug-free workplaces, employers now face the possibility of “legal” drug users in their businesses. Twenty-three states and the District of Columbia have decriminalized marijuana for medical use. [i] Colorado and Washington have legalized adult recreational use and more than a dozen other states have personal use legislation pending.[ii] Yet cannabis remains classified as a federally illegal Schedule I controlled substance and physicians cannot legally prescribe it.
As long as it is illegal under federal law, many employers remain committed to their drug free policies and intend to continue testing applicants and employees for cannabis in the manner they choose. Other employers may decide to modify their current policies based on state law changes or hiring concerns. With the numerous legal and policy considerations swirling around the legalization of marijuana, employers and workers alike are seeking clarification. This article will explore the many issues faced by employers due to the changing landscape of state marijuana laws, what to expect in the near future, and suggest best practices to protect your workplace, employees and customers.
Are employers required to accommodate marijuana use where the state has made it “legal”?
No – at least not yet. To date, the consensus among state courts has been that medical marijuana laws provide an affirmative defense that protects users from prosecution but that marijuana remains a federally illegal substance and federal law trumps state law. [iii] Nor do medical marijuana users have a viable claim under the Americans with Disabilities Act, a federal statute, as employers cannot be required to accommodate an illegal activity. Private employers are free to set their own drug policies and continue to test for cannabis and take action up to and including termination against employees who violate their policies. Anti-discrimination laws do not protect an employee as long as the employer’s drug-free policy is administered in a neutral fashion.
Employers who plan to stay the course cite concerns that include marijuana’s impact on turnover, absenteeism, workplace performance problems, safety issues, productivity, worker’s compensation claims and their image in the community. In safety sensitive positions, employers could face liability for accidents and injuries if they fail to test. Some businesses, especially those with contracts subject to the Federal Drug Free Workplace Act, must drug test to be in compliance and maintain their contracts.
A big challenge for employers is that there is presently no easy and reliable way to test for marijuana impairment. Urine screening, the most commonly used testing method, is not an accurate measure of current impairment or whether an individual has used cannabis recently. Until an inexpensive and reliable test for current impairment is developed, employers may choose to enforce a zero tolerance drug testing policy because it is so clear cut and levels of impairment are irrelevant. The mere presence of any prohibited substance can warrant discipline or firing based on a company’s specific policy.
Can a case be made for some tolerance under certain circumstances?
Yes it can. Supporters of the legalization movement argue that unless an employee reports to work under the influence, uses or possesses cannabis while at work, or poses a safety risk, off duty cannabis use is none of the employer’s business. As the number of states with medical marijuana laws grows and more consider legalizing personal use, some employers are re-thinking their current drug testing protocols out of necessity as well as public policy.
Employers need sober employees in the workplace during the workday, but it is not logical to conclude that medical and personal marijuana use laws have been enacted only to benefit the unemployed. Not all employers want to catch all drug users because it might be difficult to find and/or keep good employees in certain industries. Or they may have a valued employee who smokes pot on the weekend, similar to another employee who drinks a few alcoholic beverages, then comes in on Monday and does a good job.
At the present time, protection for off-duty employee marijuana use is limited. Only Arizona has adopted a specific law banning employers from firing medical marijuana users based on drug tests alone in the absence of impairment.[iv] Four states, California, Colorado, New York, and North Dakota have statutes that protect employees engaging in lawful activities.[v] One such statute, Colorado’s Lawful Activities Statute, Colo. Rev. Stat. 24-34-402.5 (2102)[vi], is the focus in a highly anticipated medical marijuana case pending in the Colorado Supreme Court.
The case that could provide some clarification . . . .
On September 30, 2014, the Colorado Supreme Court heard oral arguments in Coats v. Dish Network, a case that could change policy in Colorado and nationwide by challenging the legal and moral ethics of firing an employee for actions that are legal under state law and defining how employers should treat marijuana use by employees.
Brandon Coats, sued his former employer, Dish Network, because he was terminated after a random drug test showed the presence of THC (the psychoactive compound in marijuana), in his system. Dish claimed to have a zero tolerance policy for prohibited substances, including marijuana, whether or not an employee is impaired. Coats is a quadriplegic who has a state issued medical marijuana card and used the drug to manage pain and control embarrassing muscle spasms caused by his condition. Coats alleged that medical marijuana changed his life; smoking a small amount in the evening at home was an effective treatment that allowed him to go to work the next day and function with no discomfort. By all accounts, he had been a good employee during his 3 years of employment. Dish did not allege that Coats had ever been impaired at work or that his position as a call center customer service representative was a safety sensitive one.
The trial court dismissed Coats’ case for failure to state a claim concluding that medical marijuana is not a “lawful activity” in Colorado. The Court held that Colorado’s Medical Marijuana Amendment (MMA), Colo. Const. art. XVIII Sec. 14 (2001), did not establish a constitutional right to use state licensed marijuana but rather created an affirmative defense from prosecution. The appellate court affirmed the trial court on the rationale that the plain meaning of “lawful” requires that an activity be lawful under both state and federal law.[vii] Coats appealed and the Colorado Supreme Court agreed to take up this matter.
As a recent transplant to the State of Colorado, I had the fortune to attend the oral arguments on the case before the Supreme Court. From the outset, the Court struggled with the definition of “use” in Colorado’s MMA pointing out that while the MMA states that employers are not required to “accommodate the medical use of marijuana in any work place”, the law does not explicitly state whether an employer has the right to fire an employee who uses medical marijuana at home. Dish’s attorney, Meghan Martinez, urged the Court to hold that Coats was using at work when he “crossed the threshold of Dish with THC in his system”. Coats’ attorney, Michael Evans, pointed out that inactive forms of THC are not psychoactive and can remain in the body for up to 40 days and thus are not indicative of current use.
The Court spent some time questioning the parties on the meaning of “lawful” and, similar to the appellate court, pondered whether it was even necessary to determine state law legality because marijuana (both medical and recreational) is illegal under federal law. The Court also questioned the clarity of Dish’s zero tolerance policy, with one Justice stating that he found it to be lacking as it did not address the use of medical marijuana at all. Additionally, Chief Justice Rice commented that there appeared to be fundamental factual disagreements and the only thing that everyone could agree on was that at some point the plaintiff smoked marijuana and tested positive for THC.
The Court did not indicate when we can expect a ruling, but as it wrestles with the issues, employers and employees in Colorado and nationwide will continue to monitor the case and await an outcome. Since 2010 when Brandon Coats filed his claim, Coloradans voted to allow adult personal use with certain restrictions. Marijuana dispensaries selling a wide variety of seeds, cannabis and edibles have popped up all over the state. For all practical purposes, marijuana appears to be a thriving “legal” business in Colorado.
So what should employers do in light of all these conflicting state marijuana laws?
For employers who elect to stand by or adopt a zero tolerance policy, they will need to think through their policy carefully. Important considerations include whether employees will be fired for a detectable amount in their system, how much that would be, and under what conditions would employees be eligible for a second chance or rehabilitation.
Employers who choose to have some tolerance will need to spell out their policy and expectations regarding marijuana, medical or otherwise. Important points to address include that employees shall not report to work under the influence, bring marijuana on work premises, sell or share it with co-workers, or otherwise, or consume it during the work day (not at lunch or on breaks). The policy should also lay out the possible repercussions of violations.
Of course all of this is subject to change as courts around the country face these issues and, hopefully, provide guidance to employers and employees alike. In the meantime, if you have or intend to have a drug testing policy that includes screening for marijuana, make sure your policy is carefully crafted because it will likely be challenged by an employee at some point. Below are some important considerations for all employers:
- Review your state laws (and all states in which your business operates) to ensure that your policy is compliant.
- Make certain your drug policy specifically addresses medical marijuana
- Consider carefully whether or not you want a complete ban on marijuana
- Spell out (and give examples of) prohibited behavior and what, if any, drug use off the job will be tolerated.
- Explain when and how drug testing will take place.
- Explain consequences of policy violations and remind workers, if applicable, that they are subject to termination.
- Publish your drug testing policy and make certain employees have read it, acknowledged it (signed off), and are trained on it.
- Train managers/supervisors on how to recognize the signs of drug use and to understand what action to take should they suspect an employee is under the influence during work hours.
- Don’t go it alone – limit your potential liability by having an expert review your policy and make recommendations.