The Dope on Medical Marijuana for Employers
Employee use of medical marijuana is one of the hot employer topics of the decade. As more states legalize the use of marijuana for medical purposes, more employers will have to decide how they will deal with employee drug use on and off the clock. As of 2007, it was estimated that 300,000 people in the United States were medical marijuana users (estimates based on data from Americans for Safe Access). And the numbers are growing.
In some shape or form, it is legal to use medical marijuana in 14 states (Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, Jew Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington) and the District of Columbia. In Oregon alone, an estimated 39,000 Oregonians are approved to use medical marijuana. Moreover, the federal stance on drug enforcement seems to be following the tide of legalization. The Obama administration recently announced that it would not seek prosecution of individuals for possession in states condoning medical marijuana use.
So Where Does That Leave Employers?
A good question indeed that at least three states (Oregon, California, and Washington) have started to answer. And answer, generally, in favor of the employer’s right to exclude the effects of medical marijuana from the workplace.
Employer Policy on Medical Marijuana by State
Interpreting the Medical Use of Marijuana Act (“MUMA”) adopted by a ballot initiative, the Washington State Court of Appeals held that employers have no duty to accommodate employees’ medical marijuana use. Roe v. Teletech Customer Care Management. In Roe, a new hire’s doctor-prescribed medical marijuana use caused her to fail her drug screen. The employer then fired her for violating its drug-free workplace policy. In turn, the employee sued under a theory of wrongful termination. The Court of Appeals found, however, that “[a] common sense reading of MUMA’s plain language” would be that the voters were not imposing duties on private employers to accommodate employee use of medical marijuana.
Employers in Oregon have also been given the freedom to enforce their zero-tolerance drug policies. The Oregon Medical Marijuana Act similarly legalizes medical marijuana for individuals with registry identification. According to the State Supreme Court, however, Oregon’s employment discrimination laws do not require the employer to accommodate medicinal use of marijuana. Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries. In this case, the employer declined to hire a temp into a permanent position when it learned that the employee used medical marijuana. The court backed up the employer on the basis that the Oregon statute conflicted with and should yield to federal law prohibiting such drug use.
The California Supreme Court has gone even further holding that employers can take adverse action against an employee for off-site use of medical marijuana. It found that the employer could terminate an employee for failing a drug test even though the employee held a medical marijuana card to treat a back injury. Like Oregon’s high court, California determined that the employee was properly fired for engaging in conduct that violated federal law. “No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law,” Ross v. Raging Wire Telecommunications.
Multi-State Employers Beware
Although these rulings seem to follow a similar pattern, employers beyond the borders of Oregon, Washington, or California should not rely on them when making employment decisions. Thus far, however, the courts generally seem to be finding that decrimininalization of marijuana use does not fetter the employer’s ability to create and maintain a drug-free workplace.
Checklist for Creating an HR Policy on Medical Marijuana
1) Review your workplace drug policies.
2) Ensure your policy complies with the controlling state and federal law.
3) Educate your managers and supervisors about your policies and how they should respond to employees’ who they know to be users of medical marijuana.
Davis Wright Tremaine LLP
- HR Guide to the Fair Labor Act
- How to Draft an Employee Manual
- Employer’s Guide to Worker’s Compensation
- Strategic HR Planning
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