Medical Marijuana in the workplace

On Thursday, May 2, 2013, Governor O’Malley signed into Maryland law restricted use of medical marijuana. Academic centers will be allowed to apply to a commission to distribute marijuana grown by federally or state licensed growers.

Marijuana is still considered illegal under federal law. As with other states that have passed similar legislation, Maryland is now thrust into the debate of federal jurisdiction over the states. Employers are also in this mix when they discover employees who are prescribed marijuana for medical conditions and are violating company policy.

Maryland became the 19th state to legalize medical marijuana, although the program will not be implemented until 2016. Supporters of medical marijuana do not consider Maryland’s passage of a law a victory. Maryland’s law is more research based and does not allow for growing or dispensaries as in other states. Further, it will be difficult for patients to obtain. For these reasons, Maryland employers may not have to worry about this issue for quite some time. While we wait, we can watch how the topic plays out in the courts.

The first of what will most likely be many challenges has already occurred. The Colorado Court of Appeals recently upheld the firing of a man who failed an employer random drug test for marijuana use. Although medical marijuana use is legal in Colorado, the court ruled that its use is still illegal under Federal law. The ruling supports employer rights to enforce their drug policies.

Briefly, in 2010, Dish Network fired a telephone operator who was also a medical marijuana patient because he failed a random drug test. Although the employee claimed that he never used marijuana at work nor was he ever impaired while at work. The case is the first to look at whether off duty marijuana use, legal under Colorado state law, is protected by Colorado’s Lawful Off Duty Activities Statute. This statute states that employers cannot fire employees for doing legal activities while not at work.

Colorado has had medical marijuana laws since voters passed a constitutional amendment in 2000. In November 2012, Colorado became the first State to have the medical marijuana laws upheld by the voters.

Court of Appeals Chief Judge Janice Davidson wrote in the opinion, “While we agree that the general purpose of (the Lawful Off Duty Activities Statute) is to keep employer’s proverbial noses out of an employees off-site off-hours business, we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law.”

Employers have little authority in controlling employees off duty activities when those activities are legally conducted. When the activities are illegal, violate established company policies, affect performance, or directly reflect on the company, then the employer has cause to take action.

Currently, Maryland does not have a law similar to Colorado’s  “Lawful Off Duty Activities Statute”. Maryland is an employment at will State, meaning in the absence of an express contract, agreement or policy, an employee may be hired or fired for almost any reason, or for no reason at all. Of course, there are exceptions based on discrimination, retaliation, denial of employee rights, etc.

The Colorado ruling was big for employer rights. It will be interesting to follow employer/employee interactions and challenges to the medical marijuana issue from the labor angle.

Mazzella-Investigative Solutions