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Despite many attempts to decriminalize the drug, the federal U.S. Controlled Substances Act of 1970 (CSA) continues to maintain marijuana as a Schedule I substance.

 

The conflicting intersection between state and federal law has made it challenging for employers to carry out their legal obligations. Now, more than ever, it is crucial for employers to be vigilant about this developing area of the law in order to navigate various employment issues carefully.

Marijuana use is illegal under the federal CSA. As a Schedule I substance, marijuana is considered to be a substance that: 1.) possesses a high potential for abuse; 2.) has no currently accepted medical use in the United States; and 3.) lacks accepted safety standards for use under medical supervision.

In contradiction to the federal law, a total of 29 states and the District of Columbia have legalized marijuana use to varying degrees. Of these states, Alaska, Colorado, Oregon, Washington, California, Maine,
Massachusetts, Nevada, and the District of Columbia have legalized marijuana for recreational use.

Despite legalization, many of these state laws do not require employers to accommodate marijuana users,
or are otherwise silent on the issue. As an example, Ohio’s marijuana law says that employers are not required “to permit or accommodate an employee’s use, possession, or distribution of medical marijuana.”

Challenges arise for those employers in the handful of states that provide marijuana users with employee protections that prohibit discrimination against marijuana users and/or require workplace accommodations for medical marijuana users. Employers operating in these states, including Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island, must be particularly vigilant to ensure their policies comport with the law.

While a majority of states allow marijuana use, employers have a legitimate interest in keeping marijuana out of the workplace due to workplace productivity and safety concerns. To this end, employers institute drug-free workplace policies.

But in the haze of marijuana laws, employers must heed state laws in order to maintain compliant drug-free policies.

Employers located in the minority states that continue to treat marijuana as an illegal controlled substance in line with federal law can continue implementing such drug-free policies, so long as such policies comply with applicable state and local laws within its jurisdiction. Similarly, states with marijuana laws that explicitly state that employers have no duty to accommodate medical marijuana users are also free to take adverse action (such as discipline or termination) against applicants and employees who test positive for marijuana in accordance with a drug-free workplace policy. Employers face the most challenges in states with marijuana laws that place restrictions on drug testing.

States such as Arizona, Delaware, and Minnesota do not allow employers to take adverse action against an individual for off-duty marijuana use. If an employer wants to take adverse employment action, it must be able to show that the individual was impaired by marijuana during work hours. This is due to the fact that common methods of drug testing show recent marijuana use but cannot differentiate between off-duty use versus an impairment at the time of testing.

For example, a urinalysis tests for the presence of tetrahydrocannabinol (THC) metabolites. THC remains in a person’s system for days and even weeks after marijuana consumption. This means that a urinalysis does not provide any level of certainty as to whether an individual who tests positive for marijuana is impaired on the job or if the use was off-duty.

While an exception may exist for safety-sensitive positions (such as operating machinery or motor vehicles), health care positions, for the most part, do not fall into this category.

Therefore, a failed drug test alone is not grounds for a negative employment action in states with strict drug-testing requirements. Instead, these employers must take additional due diligence steps before taking adverse employment action, such as documenting evidence of actual on-the-job impairment and determining whether the individual is a registered marijuana cardholder, which will largely depend on the employer’s state.

The federal Americans with Disabilities Act (ADA) applies to employers with 15 or more employees and prohibits employers from discriminating against a qualified individual with a disability and are generally required to provide reasonable accommodations (unless an undue hardship or direct threat exception applies). The ADA clearly states that it does not protect individuals using illegal drugs, which is defined as the possession or distribution of drugs that are unlawful under the CSA (such as marijuana), but does not include drugs taken under the supervision of a licensed health professional.

Although an employer is not required to accommodate the use of marijuana by itself, employers must be careful in such situations where an individual is using marijuana for a qualifying disability under the ADA. In that case, the individual has the right to be free from discrimination and the right to reasonable accommodations for the underlying disability.

The fact that an employee is using marijuana for treatment purposes does not restrict his or her rights under the ADA. Otherwise, an employer that takes adverse action against an individual for marijuana use risks a claim that the individual was fired for the underlying disability.

The ADA aside, an employer’s responsibilities are further complicated in states that have marijuana laws that explicitly provide protections for medical marijuana users through antidiscrimination or reasonable accommodation provisions. States with such employment protections include Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island. In these states, employers are prohibited from taking adverse action against an employee who is a medical
marijuana cardholder.

However, case law is still developing in this area, which presents a challenge to employers dealing with these workplace issues. At a minimum, employers need to be aware if they reside in a state that provides heightened accommodations for medical marijuana users and engage in the interactive process of determining whether a suitable accommodation exists.

As is apparent, marijuana laws vary widely from state to state. Since this continues to be a developing area of the law, employers need to regularly review and revise their drug-testing and disability accommodation policies while keeping an eye on marijuana law developments. This is especially challenging for employers with multistate operations. Understanding an employers’ legal rights and responsibilities is paramount to mitigating risk when dealing with these kinds of workplace issues, along with up-to-date policies and careful documentation.