Newsflash – Smoking Marijuana Can Still Get You Fired . . . for now?
As of August 2010, fourteen states and the District of Columbia have medical marijuana laws. According to http://medicalmarijuana.procon.org another 8 stated have legislation and or referendums in the works.
How will this affect employers when employees are using the drug legally under state law?
At least for now, the drug remains illegal under federal law regardless of the reasons for its use. As a result, the rules around disability anti-discrimination are being tested in courts across the country as employees who legally smoke pot for a disabling condition are terminated when they test positive on drug tests. This is leaving many tough questions open for the courts as well as employers to determine – how far are we willing to mellow out about marijuana?
Businesses certainly have a legitimate safety and production interests in keeping their employees from being stoned while working, regardless of the legal or illegal nature. And employees with disabilities have the right, in at least fourteen states, not to be discriminated against for taking (or toking, as the case may be) their legally prescribed medication. So the problem is balancing these two interests. Complicating the issue is that unlike testing for alcohol, methadone, or barbiturates, tests for marijuana detect usage in the past 2 days to 2 months, depending on the type of test, amount of body fat, and the amount of use. That means that a positive marijuana urine test is not a good indicator of current impairment.
For most drugs, it’s up to the person’s physician to determine if the drug impairs the ability of the employee to safely perform their job duties. If it can be done while taking a prescribed painkiller, for example, then an employer may need to reasonably accommodate usage even during work hours. With medical marijuana, it’s not so easily resolved. If usage could have been two months ago, after work hours, then an employer has a hard time making the safety or productivity argument.
So far, both California and Oregon have relied on the fact that marijuana is still a federal crime to use, in determining that medical marijuana users have no special protection, do not need to be accommodated, and can refuse to be hired or be fired for violation of an employer’s no drug use policy. See, Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, BOLI 3004 (Or., April 14, 2010); Ross v. Ragingwire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008).
On the other end of the spectrum, Michigan’s medical marijuana statute contains a specific provision prohibiting discrimination against marijuana users. See Mich. Comp. Laws § 333.26424(4)(a). The first case testing this law is still being decided in the Michigan court system. It involves an employee of a large retailer who was diagnosed with an inoperable brain tumor and sinus cancer, who was fired for failing a post-accident drug test. The employee claims he was not impaired at the time of the accident, and only used medical marijuana after work hours. Notably, the employee had recently received the “Associate of the Year” award. So it remains to be seen how much protection will be granted, and whether the Michigan Supreme Court will follow the lead of California and Oregon.
What is clear in this still-developing area of the law is that employers do need to pay attention to this issue, and consider how their drug policies will interact with changing laws.
Here is a list of the states that are already Medical Marijuana friendly and we urge readers to stay informed and not assume that adverse actions such as discipline and termination are cut and dry when it comes to Marijuana as we go forward.
As of Aug 2010- 14 states include Washington DC,
Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington State.
We would love to hear the consensus of our readers and particularly if you are in one of the 14 states. Do any of you have any experience of employees showing up impaired on Marijuana recently?
Do you have a “drug testing” policy? You can share your reply at the bottom of this article.
This article was written by Allison Shulman J.D.
Allison is a senior adviser to CEDR’s Solution Center
Visit our website, Center for Employment Dispute Resolution (CEDR) for more information. Questions about this subject can be sent to info@lawsuitfreeworkplace.net or call Allison Shulman directly at 602 476 1418
This information is Human Resource Guidance and is not intended to be legal advice
