Note: This article was originally posted in 2017 and has been updated with current information on the topic.
Oklahoma passed a medical marijuana bill in 2018 becoming the thirtieth state (Including Maryland) to do so. State by state the legalization of marijuana for medical and recreational purposes is gaining ground. The chances of employees being high at work are definitely increasing. Businesses are scrambling to adapt.
Decriminalization v. Legalization
So far thirteen states have decriminalized marijuana, allowing recreational use. Up from just eight in 2017. Those are Connecticut, Delaware, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, and Rhode Island. Nine states have legalized marijuana for recreational use (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington)
While this legislative activity is taking place on the state level, the drug still remains illegal under Federal law. In fact, it remains a schedule I drug alongside opiates and synthetics drugs. The court battles that were expected with the U.S. Justice Department after Colorado legalized marijuana have not occurred.
Decriminalization does not mean legalization. Decriminalizemeans that possession of small amounts no longer carries criminal penalties. Most states offer a civil violation or no violation at all. Legalizedmeans that marijuana is completely legal to possess. In this case, states have set limits as to the amount that can be possessed and qualifications regarding trafficking.
High on the job
A survey of 10,000 California cannabis users revealed 58% of working professionals use daily and 31% consume while working. (Eaze Insights)
Some businesses not only allow the consumption of marijuana at work, but they also encourage it. Those that do say that it helps employees with stress and anxiety promoting longer work days and creativity. It should be noted that these businesses are mainly in the legal cannabis industry or tech fields.
What is at odds are company drug policies and making accommodations for those with disabilities. Companies want to be inclusive but want to maintain standards as well as workplace safety. Medical marijuana users are looking to the American Disabilities Act for protection.
American with Disabilities Act
The American with Disabilities Act (ADA) was signed into law in 1990. Succinctly, the ADA prohibits employers from discriminating against those who are disabled and requires employers to provide reasonable accommodations to a qualified individual with a disability to perform the essential duties of their job. Illegal drug use is not covered as a disability. However, the ADA does allow for the use of drugs taken under the supervision of a health care professional. Marijuana may be legally prescribed under state law but remains illegal Federally. Then there’s the Drug-Free Workplace Act of 1988 requiring that Federal contractors provide drug-free workplaces as a condition of receiving a contract. The ADA states that employers can require employees to conform to the Drug-Free Workplace Act. Further, under the ADA drug testing is not considered a medical examination, allowing employers to test for the use of illegal drugs.
What the courts have found is that while marijuana remains illegal under federal law the ADA cannot be applied to individuals with disabilities. However, state disability laws may apply in states where medical marijuana use has been legalized.
Court challenges
Rights of the employer and the employee vary state by state. As examples: Arizona, Connecticut, Illinois, Minnesota, and New York laws prohibit employers from discriminating against employees who use medical marijuana and must make accommodations, some further citing-unless the employee is under the influence at work. Florida’s recently passed law does not require an employer to accommodate on-site medical marijuana use. California passed Proposition 64 in 2016, which allows for the recreational use of marijuana. However, the law protects an employer’s rights to enforce workplace drug policies. Rhode Island’s law protects the employer’s right against accommodations for on-site consumption but protects the medical marijuana cardholder against hiring discrimination.
A 2017 Rhode Island court case ruled that employers could not refuse to hire medical marijuana cardholders even though the person would knowingly not pass the employer’s pre-employment drug test required of all applicants. (Callaghan v Darlington Fabrics Corp., No. PC-2014-5680, Rhode Island Superior Court, May 23, 2017)
Another twist to the saga is the off-site or off-duty use of marijuana which may be legal in the specific state but against company policy. In one of the first court cases of off-site medical marijuana use, the Colorado Supreme Court heard the case of Coats v Dish Network in 2010. The court upheld the firing of a man who failed an employer random drug test for marijuana use. Briefly, in 2010, Dish Network fired a telephone operator who was also a medical marijuana patient after 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 was 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. The statute states that employers cannot fire employees for doing legal activities while not at work. Although medical marijuana use is legal in Colorado, the court ruled that its use is still illegal under Federal law. The ruling supported employer rights to enforce their drug policies. Since this case, courts in California, Oregon, and Washington have also ruled against employees.
In July 2017 and went against the employer. In Barbuto v Advantage Sales and Marketing, LLC the Supreme Judicial Court of Massachusetts ruled in favor of an employee to use medical marijuana outside of work. The employee claimed that since they have an ADA qualified disability (Crohn’s disease) the employer must make accommodations for an employee to use medical marijuana off duty. The ruling was based on the state’s anti-discrimination law. The court rejected the employer’s argument that marijuana is illegal under Federal law and to allow accommodations would be unreasonable.
Maryland
Maryland is still getting going on its version of medical marijuana. The law was passed in 2013 and took effect in 2016. Dispensaries began opening in 2018. Maryland decriminalized possession of fewer than 10 grams of marijuana in 2014. Marijuana is still considered illegal but possession of smaller amounts will result in a civil citation rather than arrest. Each year since there have been bills introduced to further decriminalize marijuana. In 2016, a law passed making possession of paraphernalia a civil offense. In 2017, those convicted of marijuana offenses may petition to have their records expunged.
What to do, what to do…
While the use of marijuana is becoming more openly acceptable in society and states have either made it legal or decriminalized, businesses are still within their legal rights to set drug use policies and restrictions.
Confused? Don’t feel bad. It’s a tricky topic that is evolving almost monthly. Employer’s need to have hiring policies as well as policies to guide employees. These policies have to be living documents and open to change. Having employees and dealing with human resource issues is difficult, especially for small businesses. The rules are constantly changing. There will always be challenges to any policy or rule. You have to stay ahead of the curve and aware of what’s taking place.
See the blog archive for other posts regarding workplace discrimination and medical marijuana.
Which came first... February 2017
Which came first... February 2017
Languages spoken? June 2017
Ban the Box update August 2016
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