The days of Reefer Madness—the 1930s exploitation film that depicted marijuana-smoking individuals as criminals who slowly, but surely, descended into insanity—are long over. Today, the legal sale of marijuana is a billion-dollar business.
Cannabis can be found in numerous neighborhood dispensaries across the country and can be smoked, vaped, digested in edible or oil form or taken by pill. Indeed, Rochester is no different and even has a local dispensary that successfully obtained permission earlier this year from New York to be the first in the state to provide home delivery of medical marijuana.
In all, 29 states, as well as the District of Columbia, Guam and Puerto Rico, currently allow the use of marijuana for medicinal purposes. In addition to its therapeutic use, at least eight states (among them, California, Massachusetts and Washington) have legalized recreational use of marijuana, with Illinois and Vermont lawmakers recently introducing legislation to legalize recreational use.
So, what does this mean for employers?
Imagine this scenario: You’re a human resources professional working for a large company that performs random drug testing of its employees. One of the employees tests positive for marijuana. Pursuant to the company’s strict drug-free workplace policy, and the fact that the use of marijuana is illegal under federal law, it’s an easy decision to terminate their employment, right?
Not so fast. When you notify the employee of the termination decision, the employee states she is using marijuana for medicinal purposes as prescribed by her doctor. Does this disclosure change anything?
It might. Many states that allow for the use of medical marijuana, such as Arizona, Delaware, New York and Minnesota, also protect those individuals from adverse employment consequences as a result of that use. For example, in New York, “certified patients,” defined as those permitted to use medicinal marijuana, are deemed “disabled” under the New York State Human Rights Law.
As a result, employers in New York with four or more employees are presumptively prohibited from taking an adverse employment action, such as termination of employment, against an employee merely because he or she is a “certified patient” and must also provide reasonable workplace accommodations.
Some states, including Arizona and Delaware, prohibit an employer from terminating an employee due to a positive drug test for marijuana. Laws in Arizona, Delaware and New York allow employers to enforce workplace policies prohibiting employees from using drugs on the job. While not addressed in all state statutes, it seems very unlikely these laws would be interpreted to allow an employee to work while impaired by marijuana. But determining whether an employee is impaired on the job can be a challenge, as marijuana is metabolized differently than alcohol and current drug tests are unable to determine whether use occurred in prior hours or days.
Numerous states that provide for medicinal use of marijuana, however, do not prohibit employers from taking adverse action against employees for off-duty permissible marijuana use. In California, for example, an employer does not have to accommodate an employee’s off-duty use of marijuana, even if it is for medicinal purposes, and could terminate an employee for such use.
In 2015, the Colorado Supreme Court held that an employee, despite the fact that he held a valid medical marijuana card, could be terminated for off-duty use. Ohio, which passed its medicinal marijuana law in 2016, does not protect employees from the potential adverse employment consequences of off-duty use.
Another consideration for employers is the federal Americans with Disabilities Act, which prohibits employers from discriminating against employees with certain medical conditions and requires that disabilities be reasonably accommodated in the workplace. In many states where medicinal marijuana is legal, employees who have suffered adverse employment consequences have sued under the ADA.
For the most part, these cases have resulted in losses for the employees since the ADA does not protect employees who use illegal drugs, and marijuana is still illegal under federal law. The law in this particular area, however, is still evolving.
In fact, since President Richard Nixon signed the Controlled Substances Act in 1970, marijuana has been designated as a Schedule I drug, the federal Drug Enforcement Agency’s most serious category of illegal substances. It shares this category with heroin, ecstasy, LSD and quaaludes and other drugs determined by the federal government to have no currently accepted medical use and a high potential for abuse.
Bipartisan legislation introduced in the House of Representatives last month, however, would reclassify marijuana as a Schedule III drug. Schedule III drugs have been determined by the federal government to have a potential for abuse less than substances in Schedules I or II, and abuse may lead to moderate or low physical dependence or high psychological dependence. If so reclassified, marijuana would share this category with drugs such as Vicodin and Tylenol with codeine.
So what does all of this mean for HR professionals and the employer’s decision to terminate the employee with the positive drug test for marijuana? Can the employer move forward with the termination?
The answer is—it depends. Whether the employer may terminate under these circumstances without facing any potential liability for employment discrimination hinges, in large part, on the laws of the state in which the employer operates. Employers faced with these circumstances should be well-versed in the laws of the applicable state to avoid finding themselves on the wrong end of a civil rights lawsuit.
Jeremy J. Wolk is a partner in Nixon Peabody LLP’s Business & Finance department. He developed this article with Christopher G. Gegwich, a partner in the firm’s Labor and Employment group.