May 9, 2019

Over the past decade, the majority of U.S. states have implemented legislation permitting the use of medical marijuana, and the pace toward legalization across the board for medical and/or recreational use is quickening. For employers, this is another wrinkle in an already complicated array of laws related to workplace policies on drug testing and reasonable accommodations.

Beyond setting up systems for medical consumption of marijuana, such as patient ID cards and dispensaries, most state medical marijuana laws contain clarifying provisions that speak to prohibitions on discrimination and/or the extent of an employer's obligation to provide accommodations, such as the following:

  • "No … employer … may … penalize a person solely for his or her status as a registered qualifying patient …" (Illinois)
  • "An employer may not discriminate against a person in hiring [or] termination … based upon … [a] qualifying patient's positive drug test for marijuana … unless the patient used, possessed or was impaired by marijuana on the [employment] premises … or during the hours of employment." (Arizona)
  • "Nothing in this law shall be construed to require an employer to accommodate medical use of marijuana in the workplace …" (New Jersey)

Some employers follow their gut instincts about what is permissible in the context of employee drug use and find themselves in hot water after taking employment actions without regard to the particulars of medical marijuana laws. Especially given the evolving legal landscape, it is essential that employers understand and adhere to the various provisions, which often provide a roadmap for lawful decision-making.

Employers often encounter two types of thorny scenarios in this context: drug testing employees (or prospective employees) and considering reasonable accommodations. And, because the legalized use of medical marijuana is still relatively new, guidance from the courts is merely trickling in.

In February 2019, a federal district court in Arizona considered whether Wal-Mart's termination of a cashier – who was a registered medical marijuana patient – for testing positive was a violation of Arizona law. The state's medical marijuana statute provides that employers are not required to allow ingestion of marijuana at work, or allow employees to work under the influence, but further provides that an employee cannot be considered "under the influence" of marijuana solely because he or she tests positive for low levels of marijuana.

In Whitmire v. Wal-Mart Stores Inc., Wal-Mart put forth a defense under Arizona's Drug Testing of Employees Act (a separate statute) that provides employers with a "good faith belief" defense against claims. Wal-Mart argued that its determination that the cashier was impaired while working was made in good faith because she tested "so positive" for marijuana and that this good faith defense shielded it from liability under the medical marijuana statute. The court held this defense insufficient because Wal-Mart failed to present expert testimony about the results of the employee's drug test, which it needed to do in order to show the detected levels were sufficient to cause impairment.

In March 2019, a New Jersey appeals court considered whether the state's medical marijuana law excused a funeral home from considering a request for reasonable accommodation from an employee who tested positive for marijuana following an accident (third-party fault) while driving the company hearse. The state's law provides that nothing in the law "shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace."

In that case, Wild v. Carriage Funeral Holdings, Inc., the court held that the New Jersey statute's "refusal to require an employment accommodation" for a medical marijuana user does not mean that employers are "immunized" from obligations already imposed elsewhere. In other words, an employer's general obligation to field and respond to requests for reasonable accommodation doesn't change simply because medical marijuana is at issue. As the court noted, the medical marijuana law "neither created new employment rights nor destroyed existing employment rights." In the end, the matter boiled down to a routine reasonable accommodation analysis.

States have witnessed other recent curveballs. On May 10, 2019, a New York City Council bill prohibiting employers from requiring a prospective worker to submit to drug testing that would detect THC, the active ingredient in marijuana, became law. With exceptions for safety-sensitive jobs and those tied to federal or state contracts, the new law requires New York City employers to overhaul their drug-testing policies, which must be compliant by May 10, 2020.

In May 2019, Illinois Governor J.B. Pritzker announced plans to legalize recreational marijuana in the state beginning in 2020. Legalization of marijuana for recreational use will present employers with additional hurdles as they attempt to implement or enforce drug-testing policies. While employers in safety-sensitive industries and those that contract with the federal government will likely always have latitude to carry out broad drug-testing programs, generally, drug-testing policies are not one-size fits all. They must be constantly re-evaluated in light of the quickly changing medical and recreational marijuana laws.

It is no longer sufficient for employers to rely on general principles of "reasonable accommodation" or even their own common sense regarding drug testing. Employers must assess the applicable state and local medical marijuana laws and become familiar with the requirements and any relevant exceptions so that they can make informed decisions related to employee medical marijuana use.

 

This article was first published in Employee Benefit News on May 9, 2019. It has since been updated to reflect legislative developments.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.