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Perspective

Marijuana and the Workplace - Can an Employer Fire a Worker Who Comes to Work High?

October 01, 2015| By Bill Baumann | EPLI, General Liability | English

Region: U.S.

Legalization of medical marijuana for recreational or medical use has caused confusion among employers. Can the boss fire a worker who tests positive for drugs prescribed by a physician? Does it matter if that employee will be operating heavy machinery or driving a company car? The law is still evolving, but that should not stop employers from reviewing their policies regarding employee use of medical and recreational marijuana. 

At last count, 23 states and Washington D.C. have legalized medical marijuana (five of which also allow recreational use). In contrast, marijuana is still a Schedule 1 illegal drug under the federal Controlled Substances Act.1 The conflict between federal and state drug use law is one source of uncertainty. Another is how state employment discrimination statutes will be interpreted and applied in view of marijuana legalization under state but not federal law. Where does this leave employers?

The recent decision in Coats v. Dish Network provides one answer, at least for Colorado businesses.2 The employee, a quadriplegic with severe muscle spasms, obtained a state-issued medical marijuana card. The employer fired him for violating the company’s zero-tolerance drug policy. Colorado is one of the five states permitting medical and recreational marijuana use, and is also one of a handful of states with a “lawful activity” employment statute. That statute prohibits employers from discharging an employee for engaging in lawful activities outside the workplace.

The employee’s use of marijuana was clearly a lawful activity under Colorado rules, but did it also have to be lawful under federal statutes for the protection to apply? The Colorado Supreme Court held that it did, and since federal law had not legalized marijuana use, even for medicinal purposes, the lawful activity protection was not available. The company could terminate the worker, and the action was over. 

Many other states have “lawful activity” employee protections like the one in Colorado, and we do not know if they would have arrived at the same answer. And many more types of laws can come into play. A handful of states, including Massachusetts and New Jersey, have laws saying that employers are not required to accommodate marijuana use at work. Another group of states, such as Arizona and Minnesota, expressly prohibits employers from firing an employee for a positive marijuana drug test if that employee holds a valid marijuana card.

As long as marijuana is illegal under federal law, employers who fire or refuse to hire employees for using marijuana are not violating the federal Americans with Disabilities Act. The ADA requires employers to provide reasonable accommodation for qualified employees with a disability. Currently, the ADA does not require employers to permit marijuana use as a reasonable accommodation for an individual with a disability, even if that patient is a medical marijuana patient. The basis for the rulings has been that a person “currently engaging in the illegal use of drugs” is not a “qualified individual with a disability,” and marijuana is still an illegal drug for the purpose of federal law.3   

We will continue to see an increase in the number of states that legalize marijuana, and in time see  more clarity over what is permissible in the workplace. Perhaps even federal law may evolve to follow the state lead. It is not too early for employers to review the laws in their states as they exist now, and revise their drug testing policy statements to conform to any requirements. Providing direction in employment policies may prevent some employees from imposing their own form of drug testing - a lawsuit.

 

1. Gen Re, "The Marijuana Legalization Trend in the U.S. – Thoughts About the Potential Impact on Claims” (June 2015).
2. Coats v. Dish Network, 2015 Colo. LEXIS 520.
3. Stark D., “Just Say No,” Seton Hall Law Rev. 43:8 (2013)

 

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