New Twists Have Companies Smokin' With Reefer Madness

[User]

As if you weren't already busy enough, corporate counsel dealing with labor and employment have yet another new issue they will increasingly be called upon to address: the use of medical marijuana in the workplace.

Although the possession and use of marijuana clearly violates the Federal Controlled Substances Act (regardless of whether it is medically prescribed or not), a Department of Justice announcement in October 2009 has given rise to additional issues for corporate legal counsel to consider. In October 2009, Justice directed federal agents to target users and distributors of marijuana only when such use violates both applicable state and federal laws.

As a result, in the 14 states where medical marijuana use has been legalized under state law (Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington), employers must now grapple with issues involving the use of marijuana in the workplace, accommodation issues under state and federal law, confidentiality questions, and the formulation and application of an employer's "zero tolerance" drug policies.

When confronting issues involving marijuana use, or positive drug tests involving the use of marijuana, employers must first determine the applicable state and local laws governing the issues and act in conformance with these laws.

Under most state laws, employers are free to discipline or terminate employees for positive drug test results in accordance with the terms of their drug policies and practices, regardless of whether they are state-sanctioned medical users of the drug. Although the decisions directly addressing the issue are few and far between thus far, a review of recent pertinent cases is instructive:

Roe v. Teletech Customer Care Management (2009)

Teletech rescinded a conditional offer of employment because Roe failed a drug test. The trial court granted Teletech's Motion for Summary Judgment and on appeal the Washington State Court of Appeals affirmed the decision of the trial court concluding:

"MUMA [the Washington State Medical Use of Marijuana Act (pdf)] provides qualifying medical users only a defense to criminal prosecution. MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the act."

Johnson v. Columbia Falls Aluminum Company LLC (2009) (unpublished decision)

Johnson, who was a satisfactory employee and whose terms and conditions of employment were governed by a collective bargaining agreement, initiated an action alleging that he was wrongfully terminated for testing positive, even though he was a qualified marijuana user under Montana's state law. In rejecting all of his claims the court concluded:

"Johnson essentially claimed that [Columbia Falls Aluminum Company] violated the ADA and the [Montana Human Rights Act] when it failed to accommodate his medical marijuana use ... However, the [Montana Marijuana Act] provides that an employer is not required to accommodate an employee's use of medical marijuana ... [A] failure to accommodate use of medical marijuana does not violate the MHRA or the ADA since an employer is not required to accommodate an employee's use of medical marijuana."

Ross v. Raginwire Telecomm., Inc. (2008)

Ross failed a pre-employment drug test required of all new employees. Ross used medical marijuana under California's Compassionate Use Act to ameliorate the pain he suffered as a result of injuries sustained during active military duty. The court determined that Ross was a qualified individual with a disability under California law. In denying his claim under California's Fair Employment and Housing Act (FEHA) the California Supreme Court held:

"Plaintiff's position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law ... Nothing in the text or history of the Compassionate Use Act ... address the respective rights and obligations of employers and employees. The FEHA does not require employers to accommodate the use of illegal drugs."

It should be noted that two justices would have recognized a cause of action under the FEHA (a failure to accommodate). Justice Kenard, whose opinion was joined by Justice Moreno, concluded:

"The majority gives employers permission to fire any employee without requiring the employer to show that this medical use will in any way impair the employer's business interest. Absent such a showing of business impairment, I would hold neither the Compassionate Use Act nor the FEHA allows an employer to fire an employee for offsite and off duty, doctor recommended marijuana use as a medical treatment."

Like the California and Montana statutes, the various state laws do not expressly impose obligations upon employers to accommodate the use of marijuana by employees even if those employees have a qualifying disability under state and federal law. In fact, many states that have such legislation specifically state there is no duty upon employers to accommodate the use of medical marijuana in the workplace.

For example, the applicable statute in Michigan (MCLA 333.26427(c) (2)) specifically states: "Nothing in this act shall be construed to require ... [a]n employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana." (Yes, the Michigan statute spells "marihuana" differently than do those of other states.)

One could argue, as did the dissenters in Raginwire, that such statutory language does not prohibit the accommodation of off duty, offsite ingestion that does not impair the performance of an employee's duties. However, the decisions to date have not embraced this reasoning.

In sum, the case law can be anticipated to further develop but does not at this time support a conclusion that the applicable legislation was intended to impose express or implied duties on an employer to accommodate the use of medical marijuana even if the use is off duty and away from the workplace. Moreover, the Occupational Safety and Health Act (OSHA) imposes a "general duty" on employers to provide a safe workplace, which arguably supports excluding individuals who are deemed to be impaired by the use of marijuana.

The EEOC has not taken a position that would call into question the refusal to accommodate the use of marijuana by employees. Although the EEOC has not directly addressed the interplay of medical marijuana laws and the duty to accommodate, the Commission's Guide on How to Comply with the ADA does provide the following guidance and example:

30. What if an employee engages in conduct that normally would result in termination? Do I have to excuse the conduct if the employee claims it was caused by a disability?

No. As long as you treat this employee the same as you would any other who engaged in similar misconduct, you may terminate this employee.

Similarly, an employee who illegally uses drugs is not protected under the ADA and may be terminated.

Example 24: "Alice returns from a break smelling of marijuana smoke. You send her for a drug test, which comes back positive. Alice tells you that before you hired her she was diagnosed as a drug addict and completed a drug rehabilitation program. Even though Alice's record of drug addiction means that she might have been protected by the ADA as a person with a record of a disability, her current illegal use of drugs means that you may terminate her without violating the ADA."

Also, under the ADA, employers need not provide an accommodation that creates a direct threat or an unreasonable risk of harm. In addition, under the federal Drug Free Workplace Act of 1998, federal contractors and recipients of federal grants must prohibit the use of marijuana as a condition of participation.

Regardless, there is very little doubt that corporate counsel will be confronted with questions on whether and how to accommodate an employee's alleged disability and the potential extent of a "reasonable accommodation." For example, in Michigan alone, between April 6, 2009, and Jan. 8, 2010, 13,370 applications for medical marijuana use have been received by the Michigan Department of Community Health (the agency charged with issuing the required authorizations under Michigan's statute).

California may well lead the country in the use and pervasiveness of medical marijuana. California's medical marijuana industry generated approximately $2 billion a year and the collection of approximately $100 million dollars in state sales taxes during 2008 with an estimated 2,100 dispensaries, cooperatives, wellness clinics in the sector colloquially known as "cannabusiness."

Given the anticipated expansion of so-called medicinal marijuana, and the growth in litigation involving the issue, it is only a matter of time before you are called upon to provide legal advice in this evolving area of the law.

Prior to terminating the employment of an individual for simply testing positive for marijuana on a random drug test without additional cause, one must consider the specifics of state law, local ordinances, and recent state decisions involving the use of medical marijuana. Assuming the review is consistent with the current state of the law as set forth in this article, it is also suggested that the employment decision be dictated by past practices and procedures under the employer's drug testing and drug use policies.

Marijuana is still an illegal drug under federal law. Should an employee claim that he or she has been authorized to use medical marijuana under state law, it is not recommended that the employer take any additional efforts to secure the medical authorization or enter into discussions with the prescribing medical practitioners. Such actions will only give rise to a whole host of confidentiality and privacy issues that are best avoided and are unnecessary under existing law.

You will already have your hands full dealing with the issues raised above. More states are likely to approve medical marijuana in future, so these issues are only going to become more important. Even if you don’t have to deal with them today, you may well have to in the future.

Richard L. Hurford is a shareholder in the Bloomfield Hills, Michigan, office of Ogletree Deakins. Since 1980 Mr. Hurford has focused his practice on employment matters and the representation of corporate clients in litigation and claims in state and federal courts and administrative agencies.


NewsHawk: User: http://www.420magazine.com/
Source: law.com
Author: Richard L. Hurford
Copyright: 2010 law.com
Contact: Law.com - Legal News, Legal Technology, In-House Counsel, Small Firms
Website: <em>FIRE</em> Up That Joint: New Twists Have Companies Smokin' With Reefer Madness

• Thanks to MedicalNeed for submitting this article

[Grower5280]

For Colorado employers this is not an issue:

b) Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.

Copied here: Amendment 20 - Colorado

[Pythaglio]

^^^But that doesn't speak to medical use 'off the clock' as it specifies 'in any workplace'.