In our news roundup Wednesday, we cited a few items about medical marijuana, the most interesting to our purposes being the recent California court ruling about whether marijuana should be covered as a workers' comp medical benefit. In his posting on the topic, Roberto Ceniceros notes that there is a growing likelihood that medical marijuana will become a comp issue at some point, particularly since NJ just became the 14th state to allow medical marijuana use.
Now honestly, we hadn't given a great deal of thought to these laws previously, but if 14 states have enacted such legislation, it seems to be nearing critical mass so we went Googling to see what we could learn. Not only did we find a good resource that offers an overview of the 14 legal medical marijuana states, we also learned that there are an additional 12 states with pending legislation to legalize medical marijuana. The site is a great resource for tracking legislation, and it provides summaries with links to relevant state laws and to state sites. Did you ever think you'd see the day when states were posting marijuana FAQs?
Medical marijuana and employment issues
Clearly, medical marijuana is an issue that requires attention from any employers who have employees in affected states. And judging by the trend, it's something all employers may want to think about, starting now. Above and beyond complex issues such as workers comp, there are some immediate employment issues that come to mind: Can employers refuse to hire someone who is authorized by the state to use medical marijuana? Can an authorized medical marijuana user be fired for flunking a drug test? And if fired, can an employee file a discrimination suit under ADA? How do drug testing programs handle positive results for authorized users? And if marijuana is not considered an illicit substance due to medical authorization, how do zero tolerance programs need to adjust for this? How do employers authenticate those who are authorized to use marijuana versus those who are not authorized? And it's not just employers who have questions - authorized users of medical marijuana have employment questions too.
At Law.com, Tresa Baldas looks at many of these issues: Employers in a Haze Over Medical Marijuana Use. Citing Danielle Urban of the Denver office of Atlanta's Fisher & Phillips:
" ... under federal law, employers are not prohibited from taking adverse actions against someone who tests positive for marijuana. But Colorado permits medical marijuana, and another state law says it's illegal for an employer to fire someone for engaging in legal, off-duty behavior.
And then there's the Americans With Disabilities Act to consider. Under the ADA, an employee fired for using pot for health reasons could file a discrimination lawsuit.
"It's a gray area to know what you can do," Urban said. "But I think it's still risky to just fire someone for using it."
At least in Colorado, the caution seems well placed. According to Renee McGaw writing in the Denver Business Journal, the state has two conflicting laws: one that says that employers don't have to accommodate medical marijuana use in the workplace while another prohibits firing employees for engaging in legal activities during nonworking hours.
On the heels of New Jersey's recent law legalizing medical marijuana, Amy Komoroski Wiwi and Nicole P. Crifo of the law firm Lowenstein Sandler PC also examine some of these issues in the unintended Impact of New Jersey's New Medical Marijuana Law on the Workplace.
The authors note that "The Act states that a qualifying patient "shall not be subject to any civil or administrative penalty, or denied any right or privilege" related to the medical use of marijuana, but it also explicitly provides that employers are not required "to accommodate the medical use of marijuana in any workplace.'" This is similar verbiage to some other state laws. (Colorado: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." Rhode Island: "...employers are not required to make accommodations for employees who use medical marijuana." Montana: "Nothing ... may be construed to require an employer to accommodate the medical use of marijuana in any workplace." )
As for the issue of drug testing, the authors suggest caution when medical marijuana is cited as a defense in a positive drug test result. First, there is the matter of whether the user is authorized or not; and if so, an employer must consider whether it could be subject to liability under laws prohibiting disability discrimination for taking any adverse action against an authorized and registered user.
It's still uncertain ground. Courts in California and Montana have upheld employers that terminated employees who failed company drug tests, but each state law is different and issues haven't been fully tested in the courts. In its FAQs, when asked "What should I tell my employer if I am subjected to a drug test?," the state of Montana responds: "The law is silent on this issue."
Wiwi and Crifo offer some good tips to employers:
- Review the company's policies and other documents addressing drug use and testing (including drug testing consent forms) and update them as necessary to state your position on medical marijuana use by job applicants and employees.
- Ensure that all Human Resources and drug testing personnel are aware of the company's policy regarding medical marijuana.
- Adopt appropriate measures for maintaining the confidentiality of employees' and applicants' registry status.
- Maintain uniformity in the enforcement of any drug testing policy and response to positive test results.