Employment lawyers say employers are unsure about how far they have to go to accommodate medical marijuana users. Many question whether they’re even required to tolerate medical marijuana use, which is now legal in 13 states. Another six additional states, including New York, Illinois and Massachusetts, are considering medical marijuana bills.
Adding to employers’ concerns is the U.S. Department of Justice’s announcement last month that it would no longer prosecute medical marijuana users, which leaves such matters in the hands of state and local governments.
“It has really come onto everyone’s radar screen,” said Danielle Urban of the Denver office of Atlanta’s Fisher & Phillips. “I’m getting calls from employers saying, ‘I have an employee who tested positive for medical marijuana. What can I do? Can I fire that employee?'”
Her answer? It depends.
Urban said that under federal law, employers are not prohibited from taking adverse actions against someone who tests positive for marijuana. But Colorado permits medical marijuana, and another state law says it’s illegal for an employer to fire someone for engaging in legal, off-duty behavior.
And then there’s the Americans With Disabilities Act to consider. Under the ADA, an employee fired for using pot for health reasons could file a discrimination lawsuit.
“It’s a gray area to know what you can do,” Urban said. “But I think it’s still risky to just fire someone for using it.”
Richard Hurford of the Bloomfield Hills, Mich., office of Ogletree Deakins, has spent the last several months fielding calls from employers inquiring about Michigan’s new medical marijuana law, which went into effect in April. Since then, more than 5,000 Michiganders have registered as medical marijuana users.
He said a key issue for employers is what to do with their zero-tolerance polices. “Those zero-tolerance policies, particularly if someone has been prescribed marijuana, will obviously need to be modified if doing so is deemed a reasonable accommodation by a court or a jury,” Hurford said.
To date, no one has challenged Michigan’s law, Hurford said. But courts elsewhere, he noted, have favored employers in medical marijuana cases.
For example, the U.S. Supreme Court ruled in 2003 that even in states with medical marijuana laws, an employer can refuse to accept medical marijuana as a reasonable explanation for a positive drug test. Then in 2005, the high court ruled that the federal government may enforce the Controlled Substances Act’s prohibition on medical marijuana against those who use the drug under state laws.
In 2008, the California Supreme Court ruled that employers can fire workers who use medical marijuana under the state’s Compassionate Use Act—even if they are off duty and even if job performance is not affected—because it’s illegal under federal law.
“Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees,” wrote Justice Kathryn Mickle Werdeger. “Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.”