The Marijuana Exception
Vol. 55 No. 11 People who use marijuana for medical conditions, as permitted in 14 states and Washington, D.C., may be shielded from prosecution—but employers can still enforce zero-tolerance policies.
|11/1/2010||By Diane Cadrain|
Joseph Casias, a 30-year-old father of two, began work in 2004 as an entry-level grocery stocker at the Wal-Mart in Battle Creek, Mich. By 2008, he had progressed to inventory control manager and was recognized as Associate of the Year, an honor given to only two of 400 employees.
In November 2009, Casias twisted his knee at work; because Wal-Mart policy requires drug testing after a workplace injury, he underwent a urine test. Before the test, he showed the testing staff a registry card stating that he was a medical marijuana patient under Michigan law. He explained that he had been diagnosed with inoperable brain cancer at age 17, and the marijuana, prescribed by his oncologist, helped alleviate severe daily pain.
When the drug test revealed marijuana metabolites in Casias’ system, the store manager told him that Wal-Mart would not honor his registry card—and Casias was terminated. Now the American Civil Liberties Union has taken up his cause with a case before the Michigan Supreme Court. Casias claims that his discharge violated public policy and Michigan’s medical marijuana law.
The case raises legal and policy questions for employers in 14 states and the District of Columbia—jurisdictions that allow use of marijuana for medical purposes. The states are Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.
State medical marijuana laws typically require a patient to obtain a doctor’s written statement that the patient suffers from a condition whose symptoms may be mitigated by the use of marijuana. Because marijuana use remains illegal under federal law, though, doctors cannot prescribe it. Patients present the statements at state-authorized dispensaries.
The state laws are designed to protect users from state-level prosecution, and prosecution on the federal level in those states is unlikely. In an October 2009 directive, the U.S. Department of Justice said the federal government would not use its resources to prosecute patients who use marijuana or those who distribute it for medical purposes in "clear and unambiguous compliance" with state medical marijuana laws.
The core issue for employers in the 15 jurisdictions: whether to discipline or discharge an employee found to be using marijuana for medical purposes, or whether to carve out a narrow exception for such employees.
Even for HR professionals in other states, the questions are pertinent. Ballot initiatives to allow medical marijuana use are pending in Arizona and South Dakota, and legislation is pending in Ohio and Pennsylvania. In California, where medical use of marijuana is already legal, voters will cast their ballots Nov. 2 on whether to legalize recreational use of marijuana.
There are no clear solutions, but employers can consider several factors in crafting their responses.
Opponents of medical marijuana use maintain that shielding users from state prosecution is the state laws’ only function, and that the laws confer no workplace rights. But medical marijuana advocates are pushing back. They argue that the laws should protect medical marijuana users from adverse employment actions based on marijuana use and should trigger the protections of state disability discrimination laws. Such issues are in litigation in at least two states.
Without the leverage of possible state or federal prosecution, what’s an employer to do?
Before taking action, determine whether your company is affected. Only those in the 15 jurisdictions that allow medical marijuana need to decide how to treat employees’ lawful use. And in those 15 jurisdictions, affected employers would exclude federal contractors as well as companies in the transportation and commercial nuclear power industries; workers at those employers are required by law to be drug-free.
Then, recognize that opponents and proponents are divided on the best course for an employer to take. Consider four approaches. The first two—maintaining a zero-tolerance policy, and placing the marijuana user on disability leave—are the most legally defensible, experts say. Some maintain that the third and fourth options—carving out limited exceptions for medical marijuana users, and treating marijuana like any other drug—may present legal problems.
Michael McClory, an attorney with Bullard Smith Jernstedt Wilson in Portland, Ore., recommends a zero-tolerance policy such as the following:
"The company prohibits employees from reporting for work with an illegal drug, including marijuana (medical or otherwise), in his or her system. The company enforces this policy consistently with respect to all drugs, including medical marijuana, as the law allows the company to do."
Zero tolerance enforces workplace safety and provides "the best notice to employees about what is expected," McClory says.
Attorney James Shore, a partner with Stoel Rives in Seattle, represents the employer in Roe v. TeleTech Customer Care Management, No. 38531-7-II, before the Washington Supreme Court.
In that case, a job applicant who had successfully worked for the company in the past reapplied for the position of customer care consultant. In the meantime, she had begun medical marijuana treatments for migraines after legal pharmaceuticals failed to offer relief. The company allowed her to work 10 days and then rescinded the offer based on the results of a drug test.
According to Shore, "Marijuana, no matter what state law says, is still illegal under federal law, so employers would be well-served to prohibit all drugs that are illegal under state and federal law." A zero-tolerance policy "leaves no room for doubt."
McClory adds, "When an employee comes to you with a medical marijuana card, you tell him that you have a zero-tolerance policy, that you will enforce it and that the result will be termination."
Yet there are two sides to zero tolerance: "You rule out good employees who are capable of doing the work," warns Michael Subit, an attorney with Frank Freed Subit & Thomas LLP in Seattle, who represents the plaintiff in the Roe case.
Applying Disability Leave
A vice president of human resources, who asks not to be named, says that if an employee presents him with a medical marijuana card before any testing has taken place, he puts the employee on disability leave.
"We have 250-pound presses and roll formers that make corrugated metal," says the HR executive at a sheet metal fabricator with 2,000 employees nationwide. "All our employees operate heavy equipment except those in the offices. We’re very open about our no-tolerance policy; employees can’t come to work under the influence." If an employee has a card, he puts the worker on leave under the Family and Medical Leave Act or disability leave, so "they can use that time to decide what they want to do."
Permitting Limited Exceptions
The high courts of California, Montana and Oregon have ruled that employers have no obligation under state disability discrimination laws to accommodate employees lawfully using medical marijuana. In some states, including Colorado and Michigan, the laws specify that no workplace accommodations are required.
Those rulings and statutes notwithstanding, experts say that if the underlying medical condition is a disability, an employee might qualify for the protection of disability discrimination laws if the employee can show that the underlying disability was a motivating factor in the employer’s decision, or that the employee was "perceived as" disabled. As a result, employers may choose to carve out limited exceptions for medical marijuana use.
The ruling in an Oregon case, Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, SC S056265, (Ore. 2010), held that the protections of Oregon’s disability discrimination laws did not extend to medical marijuana patients. Nonetheless, employers may not be off the hook, one expert says. "I don’t think employers are completely free from potential liability for disability discrimination under state law when taking adverse employment action against a medical marijuana user asserting a privilege under state medical marijuana laws," says David Black, an attorney in the Seattle office of Jackson Lewis.
"When an employee brings you a card for medical marijuana before, after or independent of a company-sponsored drug test, first ask why the person is presenting it," Black adds. "Nine times out of 10, it will be because the employee expects an upcoming drug test and would like to be excused. The employer should inform the employee of its drug-free workplace policy and its equal employment opportunity policy, then wait for the results of the drug test. Meanwhile, the company should analyze the employee’s job function, finding out more about the employee’s use of controlled substances and whether the person has the potential to be impaired at work."
If an employer carves out a limited exception for medical marijuana use, McClory says, "the company should do a fitness-for-safe-duty analysis to find out whether the employee can do the job safely. Ask a doctor about the duties of the position. If the doctor says the employee can’t do the job safely, the employer should ask why. If, for example, the doctor says the employee can do some things but not drive a crane, the company can figure out what to do to alleviate the safety issue, first within the job held, then in other open jobs."
Such reasonable accommodations, if the employer chooses to make them, are subject to concerns about whether they would create an unreasonable hardship for the employer or would compromise safety. "Creating a new job is per se unreasonable," McClory observes.
Consistency is important. If an employer allows an exception or an accommodation in a medical marijuana state, then employees who are found to have marijuana in their systems and who work in other states could potentially complain about inconsistent policy. "Once you start making exceptions, especially in companies that operate in many states, you may run into problems," Shore says.
Just Another Drug?
Advocates on both sides point out that other legal drugs might impair ability just as marijuana can. Why fire employees with marijuana in their systems but not those on painkillers or antihistamines that could cause impairment? "From an employer’s point of view, standards for marijuana use should be the same as the ever-evolving standards for alcohol," says Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws. "Opponents have to acknowledge that the current drug-testing system doesn’t address impairment. If an employer wants a workplace that isn’t impaired, it should test for impairment, not for marijuana metabolites."
Says Subit: "Employers should treat a medical marijuana card no differently from any other prescription medication."
Attorney Daniel W. Grow, who represents plaintiff Casias, the manager terminated from a Michigan Wal-Mart, adds, "There’s no rule against a person taking Benadryl. A person who takes Benadryl can have a beer at lunch and fall asleep on the job."
There are no easy answers. Zero-tolerance policies may offer clarity but lack compassion. And the alternatives create cloudy issues. An employer’s approach will depend on company culture, the nature of the jobs and the state laws. All are in flux.
The author is an attorney and writer based in West Hartford, Conn., and a member of the Human Resource Association of Central Connecticut.