You notice a strange odor as you walk by an employee standing on the street in the smokers’ area outside the entrance to your building. Then you realize the person is smoking marijuana. You may think you have clear grounds for discipline, termination or even calling the police. But taking action against the worker could be illegal.
When California voters legalized the medical use of marijuana by passing Proposition 215 last November, few considered its potentially widespread impact in the workplace.
Now it appears the new law could actually allow employees to use marijuana on the job. What’s more, the law clearly creates some new complications for drug-testing programs.
As a result, employers need to be prepared to deal with the problems Proposition 215 is likely to raise.
Join us this fall in San Francisco for the California Employment Law Update conference, a 3-day event that will teach you everything you need to know about new laws and regulations, and your compliance obligations, for the year ahead—it’s one-stop shopping at its best.
Medical Marijuana Use Now Legal
Proposition 215 allows the use of marijuana if it is ‘recommended,’ verbally or in writing, by a physician. This is true even though federal law still bans the use of pot. Consequently marijuana, like other legal drugs, may in some instances be used by employees even while at work. But identifying when the use of marijuana may be permissible and when it could be grounds for termination will be tricky-particularly because the law is so new and poses so many unanswered questions.
Right to Confirm Legal Use
You have the right, according to Dennis B. Cook, a partner in the Sacramento law firm of Cook, Brown, Rediger & Prager, to question a worker you find smoking pot or who you otherwise believe is under the influence of marijuana at work. Your inquiry should focus first on finding out if the worker has a doctor’s recommendation-and asking for written verification. But this verification may be tough to get because many doctors won’t put their recommendation in writing for fear of violating federal law and being criminally prosecuted or losing their right to prescribe drugs. In fact, Kaiser Permanente reportedly has issued new guidelines suggesting that its doctors not provide patients with letters recommending marijuana. An alternative to a written note could be a verbal confirmation from the employee’s doctor.
Also, keep in mind that because of medical privacy and Americans with Disabilities Act (ADA) issues, you should never ask why someone has been prescribed a medication, including marijuana.
What should you do if you can’t verify that the employee is using marijuana on a physician’s recommendation? You may want to treat the case as you would any other involving an employee who uses an illegal drug in violation of your policies.
Impact on Worker Performance
Confirming that an employee is using medically recommended marijuana isn’t the end of the inquiry, however. What can you do if you believe the drug is affecting the worker’s performance? Suppose, for example, the employee doesn’t seem alert or is absent a lot. Proposition 215 is still too new to provide concrete answers, but here are some points to keep in mind:
- Treat marijuana as a legal prescription drug. Evaluate and make decisions about an employee using pot as you would someone who is taking any prescribed medication, such as codeine, or an over-the-counter drug that might affect their work. Don’t focus on the drug, but on the worker’s performance.
- Document problems. If you think there are performance deficiencies, document the details as well as your efforts to resolve them. Use the same procedures and keep the same re- cords you would in any situation in which an employee is not doing the job satisfactorily.
- Use caution with safety-sensitive positions. If a job involves potential danger to the employee or others, such as driving a motor vehicle or operating machinery, you probably don’t have to allow the worker to continue in the position while using medical marijuana-or any other drug that impairs their performance.
Reasonable Accommodation Issues
Proposition 215 also raises potentially complicated accommodation issues under the Americans with Disabilities Act, which applies if you have 15 or more employees. It could also involve the family leave laws that cover employers with 50 or more workers.
Imagine this scenario: You have a worker who wants to use marijuana to alleviate symptoms caused by a serious medical condition such as cancer that could be covered by the ADA. But because the drug causes lethargy, the person asks you to accommodate them with a reduced work schedule. Or an employee requests intermittent family leave due to a health problem and the side effects from marijuana-in essence cutting their work hours.
Do you have to agree?
Again, the key is to treat marijuana-related issues as you would those raised by the use of other legal drugs. First, you probably don’t have to approve an accommodation unless the worker is using marijuana for a serious health problem or disability covered by the ADA or the family leave laws.
Second, under the ADA, you only have to provide an accommodation that doesn’t cause you undue hardship. And even more important, the accommodation must enable the employee to perform their essential job functions.
Impact on No-Smoking Policies
Another problem could arise if a worker insists they need to smoke pot at work. You have the right to ban smoking in most workplaces and can probably require that all smoking, including marijuana, take place off site.
Effect on Drug Testing
In addition, Proposition 215 calls into question the validity of many existing drug testing programs. Here are some ways the new law may impact you:
- Don’t assume you can discipline. If an employee or applicant tests positive for marijuana, you can no longer automatically discipline, fire or refuse to hire the person.
- Allow the applicant or employee to explain. A person with a positive marijuana test should be given the chance to produce a physician’s written recommendation, or have their doctor give a verbal confirmation.
- Have a doctor review test results. Bradley W. Kampas, a partner at the San Francisco office of the law firm of Jackson, Lewis, Schnitzler & Krupman, suggests you select a doctor who has experience dealing with substance abuse to review positive test results with the person and request verification or other facts from their physician. Then, based on all the information collected, the doctor can simply tell you whether the applicant or worker passed or failed the drug test.
- Review federal drug requirements. Some transportation workers, such as truckers, airline pilots, railroad workers and bus drivers, are subject to special federal drug-testing rules. Because marijuana use is still illegal under federal law, these employees may not be able to use the drug legally-even for medical purposes. Also, some federal agencies who contract with private employers require that they comply with federal drug-free workplace policies, which would also preclude marijuana use.
Audit Your Drug Policies
Both Kampas and Cook recommend having a policy that requires employees to notify you of any work-related restrictions in connection with the use of any substance-whether prescribed or not-that could potentially impair their ability to work. This will help you monitor safety and performance issues. The policy should also state that failing to disclose work restrictions is cause for discipline or termination.
Also, if marijuana use is currently an automatic ground for discipline or termination, you should consider revising your policy.
Changes to Law Possible
Finally, State Senator John Vasconcellos is planning to sponsor legislation to clarify Proposition 215. There may also be court challenges to the law. We’ll keep you posted.