Legal Marijuana Becomes a State Government Relations Issue

By Christopher Mitton, Legislative Associate

“Corporation Fires Quadriplegic Man” reads the headline on the front page of your city’s major newspaper. As you read, you learn that the termination was for the use of marijuana and companies with federal contracts must provide a drug-free workplace. But what if it was medical marijuana in a state where medical marijuana is legal? What sort of protections must be extended to employees who qualify as “disabled” under state law and/or the federal Americans with Disabilities Act (ADA)? The ADA states that employers must make a reasonable accommodation for their employees, but does this include accommodating the use of marijuana outside the office?

As a state government relations professional, why should you care? First, there may be legal implications surrounding marijuana use in the jurisdictions in which you operate and you may be called upon to seek statutory or regulatory relief for your company.

Second, since Colorado and Washington voters legalized recreational use, the issue has become of interest to many state Attorneys General as they look at the impact legalization could have in their states. If they care, so should you.

Third, if any state in which you operate moves to legalize recreational use, it may have a direct impact on your workforce, union contracts, contracts with state or federal governments and even your private sector customers.

Currently, there are 24 jurisdictions where the use of medical marijuana is legal within their borders. Oregon, Alaska and the District of Columbia recently joined Colorado and Washington in allowing the recreational use of marijuana by anyone over the age of 21. However, the Federal government has not recognized marijuana as a legitimate treatment for any medical condition. (Controlled Substances Act, 21 U.S.C. 801) According to current data, there are approximately 2.5 million medical marijuana users in the US and countless others using recreationally. (Procon.org, 2014)

With conflicting state and federal laws regarding marijuana use, legal fights are inevitable; and they have been going on for years. For example, last September the Colorado Supreme Court heard oral arguments in the Coats v Dish Network case that will help define a marijuana user’s rights in that state. In 2010, Dish Network fired medical marijuana patient Brandon Coats, a quadriplegic, after he failed a random drug test. There are no allegations that Coats was under the influence at work; however, the company said it has a zero-tolerance policy on drug use. Coats sued his former employer claiming that his off-the-job medical marijuana use should be protected by Colorado’s Lawful Off-Duty Activities Statute.

Dish Network countered by claiming that medical marijuana use cannot be considered legal because it is illegal federally. “Employers really need to keep an eye on this decision. If the Colorado Supreme Court were to rule in Mr. Coats’ favor, that sort of decision would help other proponents of marijuana use in other states and other jurisdictions to support their argument that employees should have protections for using marijuana,” said Vance Knapp, at Sherman & Howard. (Safo, 2014)

Twenty-nine states and the District of Columbia have statutes which will protect employees from adverse employment actions based on their off-duty activities. Some states’ statutes are as narrow as only protecting the use of tobacco, eight states protect the use of all lawful products, while Colorado, California, New York and North Dakota protect all lawful activities. Colorado’s Lawful Off-Duty Activities Statute prevents companies from firing workers for doing things off-the-job, such as smoking cigarettes, which are legal.

In most states, an employer is well within the law to terminate an employee that has tested positive for marijuana. Current state laws surrounding medicinal marijuana have created specific exemptions which allow employers to prohibit any sort of use in the workplace or being intoxicated on the job, much like alcohol. Californiai, Washingtonii, Montanaiii and Oregoniv have case law supporting an employer’s right to terminate employment when an employee tests positive for marijuana. Additionally, Court decisions in Illinoisv and legislation in Colorado have created safeguards for employers to continue to institute a zero-tolerance drug policy regardless of the legal status of marijuana in the state.

California was the first state to rule in favor of an employer’s right to terminate an employee for consumption of marijuana during non-work hours. The Ross v RagingWire Telecommunications case held that a patient who has been prescribed medical marijuana is not protected from termination because of his/her prescription. The Supreme Court explained, “Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.” The defendant argued that under the California Fair Employment and Housing Act (FEHA), RagingWire would have to make a reasonable accommodation for his medical condition which included the use of marijuana outside the work place. The Court cited Loder v City of Glendale (1997) which held that FEHA, “does not require employers to accommodate the use of illegal drugs." The Court also concluded that the Compassionate Use Act (authorizing medical marijuana in California) did not give marijuana the same status as any legal prescription drug, and no state law could completely legalize medical marijuana since it is still illegal at the Federal level.

On the other hand, a number of states have included antidiscrimination provisions in their medical marijuana statutes, prohibiting employers from taking adverse action against individuals merely because of their status as medical marijuana patients; New York, Connecticut, Maine and Rhode Island all have such provisions. New York goes as far as considering all medical marijuana patients as disabled under New York’s Human Rights Law. Laws in Arizona, Minnesota and Delaware bar adverse hiring practices against employees if they are registered as a medical patient and may only terminate an employee if they are impaired in the workplace. It is widely accepted that a positive test result showing the presence of THC (the primary metabolite in marijuana) in the employee's urine does not establish impairment. A positive drug test does not provide any definite information as to whether an employee consumed marijuana at work or whether the employee was under the drug's influence during working hours, so there would have to be other proof of impairment.

Many other states have yet to see legal challenges to their statutes which will ultimately shape the policy in each state. Therefore, companies need to consider a number of factors involving conflicting state and federal rights and prohibitions to craft appropriate corporate policies.

For example, does the ADA take precedence over Department of Transportation regulations or OSHA standards? Could your company risk federal sanctions by accommodating medical marijuana users, or are you creating a conflict over termination guidelines? Law enforcement and science are struggling to find a clear way to measure impairment due to the length of time it takes for the human body to fully metabolize cannabinoids. If your company terminates an employee for perceived impairment, legal challenges are likely to follow. Even after the Colorado Supreme Court rules on the Coats v Dish Network case, there will be new questions raised in Colorado. If the Court rules in favor of Mr. Coats, under protection of the Lawful Off-Duty Statute, lawsuits over recreational use will surely follow.

Another emerging issue is the role of health insurance for medical marijuana patients. In May, the New Mexico Court of Appeals ruled unanimously in favor of Gregory Vialpando, who suffered a serious back injury on the job. His doctor prescribed him medical marijuana for his debilitating back pain and Mr. Vialpando asked for reimbursement from the insurance company. After years of court-battles the Court ruled that the former employer and insurance company would be obligated to provide compensation for his treatment. The Court held that the defense failed to show the specific Federal law that they would be violating for the compensation. The Vialpando decision is the first of its kind and is something else to be considered by companies operating in states where medical marijuana is legal.

As the legalization of marijuana continues to gain cultural and legal acceptance, employers will be forced to navigate a murky and evolving landscape. At the moment, employers continue to have the upper hand on recreational users and in the majority of medical jurisdictions, but as the country continues to grow more apathetic to the war on marijuana, employers could find themselves holding the minority opinion and increasingly less able to maintain zero tolerance policies. Some companies understand these risks and have begun to reach out to state elected officials to advocate for statutory and regulatory policies that protect them and their employees.

If you are not sure about your company’s position or concerns with respect to the growing acceptance of marijuana use, a consultation with human resources and legal counsel colleagues would be an excellent place to start.

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Christopher Mitton is a Legislative Associate in the Legislative Information Services Division.

ReferencesControlled Substances Act, 21 U.S.C. 801. (n.d.).

DiNome, J., Haverstick, A., & Perkins, H. (2014, December 2). Medical Marijuana and the Workplace: What Employers Need to Know Now. Retrieved from Forbes.com: http://www.forbes.com/sites/theemploymentbeat/2014/12/02/medical-marijuana-and-the-workplace-what-employers-need-to-know-now/

Gaita, P. (2014, August 14). Hazy Outlook: The Struggle Between Employer Drug Testing and Legalized Marijuana. Retrieved from thefix.com: http://www.thefix.com/content/hazy-outlook-struggle-between-employer-drug-testing-and-legalized-marijuana

Marijuana Policy Project. (n.d.). The Twenty-Three States and One Federal District With Effective Medical Marijuana Laws . Retrieved from www.mpp.org: http://www.mpp.org/assets/pdfs/library/MMJLawsSummary.pdf

Motel, S. (2014, November 5). 6 facts about marijuana . Retrieved from Pew Research Center: http://www.pewresearch.org/fact-tank/2014/11/05/6-facts-about-marijuana/

National Conference of State Legislatures . (2010). Discrimination Laws Regarding Off-Duty Conduct . Washington D.C.: National Conference of State Legislatures .

Procon.org. (2014, November 13). Number of Legal Medical Marijuana Patients. Retrieved from ProCon.org: http://medicalmarijuana.procon.org/view.resource.php?resourceID=005889

Ross v RagingWire Telecom., Inc, 174 P.3d 200 (California Supreme Court 2008).

Safo, N. (2014, May 7). Legalized pot use vs. employer drug testing. Retrieved from Marketplace.com: http://www.marketplace.org/topics/business/legalized-pot-use-vs-employer-drug-testing

Sedgwick Law. (2008, February ). California Supreme Court: Medicinal Marijuana Prescription Won't Protect Your Job. Retrieved from Sedgwicklaw.com: http://www.sedgwicklaw.com/california-supreme-court-medicinal-marijuana-prescription-wont-protect-your-job/

i Ross v. RagingWire Telecomm., Inc., 174 P.3d 200 (Cal.2008).ii Roe v TeleTech Customer Care Mgnt LLC, 2011 Wash. Case 393, No. 83768-6.iii Johnson v. Columbia Falls Alum. Co., 213 P.3d 789 789 (Mont. 2009). iv Emerald Steel Fabricators, Inc. v Bureau of Labor & Indust., 348 Or. 159, 2010 Ore. Lexis 272, CA A130422, SC S056265 (April 14,2010).v Eastham v. The Housing Authority of Jefferson County and IDES , 2014 IL App (5th) 130209 (5th Dist. Dec. 2, 2014).