by Lorraine Yeomans
The 2010 state legislative sessions have kicked off across the nation, and one of the first pieces of legislation to be signed into law this year was a bill legalizing the use of medical marijuana.
On January 18, as one of his last acts before leaving office, New Jersey Governor Jon Corzine signed the “New Jersey Compassionate Use Medical Marijuana Act,” making the state the 14th in the nation to permit the use of marijuana for medical purposes. According to a recent Quinnipiac University poll, it appears that many neighboring New Yorkers would support a similar measure in their own state.
Though the debate over the legalization of marijuana for medical purposes is far from a new one, it appears to have picked up a recent surge of interest, raising policy and liability questions for employers across the country.
Special issue of Employers State Law Alert on medical marijuana and employment law
How the laws work
As we are all aware, possession, sale, and recreational use of marijuana is illegal in the United States. So how do medical marijuana laws reconcile the illegality of the substance?
In most states, state criminal penalties for the use, possession, and cultivation of marijuana are removed for patients with a recommendation or referral from their physician. Typically the physician must indicate that the patient will benefit in some way from the use of marijuana for the treatment of specified conditions. Authorized medical conditions vary from state to state, but most commonly include cancer, HIV/AIDS, epilepsy, multiple sclerosis, and glaucoma.
Many states have created state-run registries that require qualified patients to register and receive special identification cards denoting their medical need. Other states require only that patients possess written documentation from their physicians. In some states where registration is required, a patient’s failure to register results in a forfeiture of the use of the affirmative defense of “medical necessity” if they are charged with illegal possession of marijuana.
State laws also vary in specifying how the marijuana can be dispensed to a qualified patient or caregiver. In some states, certified and licensed dispensing centers are the only legally authorized providers of marijuana. Others allow patients to grow, cultivate, and consume their own marijuana. Still other states provide for a combination of the two. However, all states limit, in some way, the amount of marijuana that can be grown or possessed during a given time.
State by state comparison of 50 laws in 50 states, including workplace drug testing
Ever since California was the first to legalize the use of marijuana for medicinal purposes in 1996, a steady stream of states have followed suit. As noted earlier in this article, New Jersey just became the 14th state in the nation to legalize the use of marijuana for medicinal purposes. New Jersey joined Maine, Rhode Island, and Vermont on the East Coast, while Alaska, California, Colorado, Hawaii, Michigan, Montana, Nevada, New Mexico, Oregon, and Washington round out the rest of the nation. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors to prescribe marijuana (federal law prohibits doctors from prescribing marijuana).
Last year about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana. These include Alabama, Delaware, Illinois, Iowa, Massachusetts, Mississippi, Missouri, New York, North Carolina, Pennsylvania, Tennessee and Wisconsin. Many of these states have already filed bills to be taken up during this year’s legislative sessions.
In the meantime, existing laws continue to be interpreted and modified through legislative action or court decisions. A recent decision by the Washington Supreme court put the application of that state’s law into question when it ruled that the medical marijuana law did not legalize marijuana, but instead only provided an affirmative defense.
Monthly update on employment law changes from all 50 states – Employers State Law Alert
What’s happening on the federal level?
The use of marijuana remains illegal under the Federal Controlled Substances Act despite continued attempts to pass national medical marijuana legislation. However, the federal government recently changed its long standing policy of prosecuting users of marijuana whether for medical or other purposes. In October 2009, the Obama administration announced that it would no longer pursue medical marijuana users and distributors in states where it is legal. This represented a major change from the prior administration’s policy.
Another significant action on the federal level was Congress’s lifting of the Barr amendment this past December. The amendment, in effect since 1998, prohibited the District of Columbia from legalizing the use of medical marijuana. Congress’s action not only clears the way for the District to enact such a law, but advocates see it as a significant indication of a shift in view towards the use of marijuana as a public health tool.
Keep up with the latest changes in federal laws affecting employers with Federal Employment Law Insider
What does this mean to employers?
In Colorado, the state has received more than 13,000 patient applications since its medical marijuana law’s inception in 2001. Michigan’s relatively new law, passed in 2008, has already registered over 7,000 people as either patients or caregivers. These large, and growing, numbers, when combined with increased state interest and federal policy changes, make it clear this is an issue employers may need to address at some point. So what does this all mean to employers trying to enforce drug-free workplace policies and comply with state and federal laws?
Obviously the laws of the state in which you are operating should be carefully examined for guidance. Some states, such as Colorado, have specifically stated that nothing in the medical marijuana law requires an employer to accommodate the use of medical marijuana in the workplace. In these states it may be clear that employers can prevent employees from using marijuana at work, but it is still not so clear whether employees are protected when they come to work with marijuana in their systems.
Other states have taken the opposite approach, specifically prohibiting employers from disciplining or terminating employees based on their medical marijuana use. Again, it is not always clear whether these laws apply to both on and off-duty use.
Michigan’s law, in attempting to address employer issues, creates further confusion. The law prohibits disciplinary action by a business based the use of medical marijuana by a registered patient, but the law also indicates that employers are not required to accommodate the ingestion of marijuana in any workplace. Several states do not address workplace issues at all.
The good news is that court decisions in the last few years have upheld an employer’s right to terminate an employee who violates drug-free workplace policies, despite approval for the medical use of marijuana. These courts have largely upheld employer policies as legal under the federal Controlled Substance Act, which makes the possession of marijuana illegal.
An employer’s rights to prevent medical marijuana users from using drugs in the workplace, to terminate them for being under the influence at work, and to terminate them for testing positive for marijuana in their systems has been upheld. It does not appear that state medical marijuana laws give employees a special legal claim to sue for wrongful termination.
In 2008 Governor Arnold Schwarzenegger vetoed a California bill that would have prohibited employers from firing employees who tested positive for marijuana where the employee was a qualified medical marijuana user. The bill was an attempt to overturn a California Supreme Court decision that allowed employers to do just that.
The governor stated that his reason for the veto was that the medical marijuana law was not designed to protect employees and that he did not want to interfere with an employer’s authority to fire workers for being in violation of federal drug laws.
There are also questions regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions.
At least one state Supreme Court has ruled that employers do not need to make such accommodations. The court found that the ADA is not intended to protect individuals who violate federal drug laws. In addition, the ADA does not require accommodation where a threat to employee safety or unreasonable risk of harm would be created. Employers can argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment.
Another concern for employers of medical marijuana patients is workplace safety. Employers must meet OSHA and other federal regulations for safety, especially where employees perform potentially dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties.
Several of the states’ medical marijuana laws specifically prohibit the operation, navigation, or actual physical control of a motor vehicle, aircraft, or motorboat while under the influence of medical marijuana.
The U.S. Department of Transportation recently reminded employers of trucking, railroad, airline, and transit system companies that state medical marijuana laws do not override federal requirements to test transportation employees for drug use and that medical use does not excuse positive test results under these requirements. State medical marijuana laws have no impact on other federal regulations that address the use of drugs and the workplace.
Conduct an audit of your company’s drug testing policies and procedures with the Employment Practices Self-Audit Workbook
In general, court decisions tend to rule in favor of employers who enforce drug-free workplace policies. However, it’s hard to say, in light of recent developments on the state and local levels, whether this trend will continue. Employers should carefully review their drug policies and make sure they include provisions addressing the issue of medical marijuana use.