Medical Marijuana 000057621940_Large For reasons that are subject to debate, 4/20 has become known as a holiday for those who enjoy marijuana.  However, over the course of many years, the face of “pot culture” has changed to include not only those lighting up for recreational purposes, but also individuals suffering from chronic diseases seeking a better way to manage their symptoms.  This past Sunday, April 17th,  Pennsylvania Governor Tom Wolf signed a bill legalizing marijuana use—in pill, oil, vapor, liquid or topical form—for 17 qualifying diagnosed conditions.  In neighboring New Jersey, medical users can smoke in private, but legal use is limited to around 10 specific medical conditions, or any imminent terminal illness, with doctor approval.

Medical Marijuana and Employment Law

Most recent laws legalizing marijuana use have been geared towards removing criminal penalties for users, and do not fully address workplace issues posed by medical marijuana.  The new Pennsylvania law explicitly prohibits employers from discriminating against employees because of their status of medical marijuana cardholders, but only addresses the impact of a positive drug test for a limited set of job duties, such as public utility workers. The New Jersey law states that employers need not accommodate marijuana use in the workplace, but is silent on off-duty medical use.  Only three states – Arizona, Delaware and Minnesota – explicitly protect employees who test positive for marijuana use and have medical authorization.  These provisions place employers in a difficult position by requiring them to look past a positive drug test unless they can show that an employee is impaired due to marijuana use during work hours.  Since urine-based drug tests do not actually measure impairment, and there is currently very little guidance from courts in those states, it is not clear how employers in those states are expected to meet this standard.

In most states, the advice of my colleague Larry Besnoff holds true: employers with “zero tolerance” drug use policies can refuse to hire, or terminate, employees who fail a drug test for marijuana – with or without medical authorization.  And marijuana use or possession in the workplace is clear grounds for termination.  In addition, in most states, employers with federal contracts are under no obligation to accommodate medical use, which remains illegal under federal law.

Potential Workplace Protections for Medical Use

Marijuana advocates across the country are hoping that the recent legal changes are only the beginning of a larger movement that could impact the workplace.  For example, in New Jersey, a bill was introduced in February of 2016 that would protect employees for off-duty use of medical marijuana.  The bill would prohibit employers from firing employees for medical marijuana use unless the employer can prove that the lawful use of marijuana has impaired the employee’s ability to perform his or her job responsibilities.  Employers would have to allow employees an opportunity to present a legitimate medical explanation for any positive test result.  The bill is currently pending in the Assembly Health and Senior Services Committee.

Medical Marijuana and “Reasonable Accommodations”

In the absence of legislative action, some employees have tried to argue that their medical marijuana use is protected under disability discrimination laws.  Under the Americans with Disabilities Act (“ADA”) and similar state laws, employers must reasonably accommodate disabled employees absent a showing of hardship by the employer.  Reasonable accommodation issues can be challenging for employers because they are very fact-sensitive, and require both employer and employee to engage in the interactive process to determine a suitable accommodation.  Fortunately for employers, to date, no state or federal courts have required employers to accommodate medical marijuana use.

On the other hand, neither the U.S. Supreme Court, nor any U.S. Circuit Courts, have ruled that off-duty marijuana use can never be a reasonable accommodation.  Therefore, this issue remains unsettled.  In New Jersey, there have been several recent lawsuits filed by employees claiming that their employers failed to accommodate their disabilities by allowing medical marijuana use.  These cases illustrate the tension between the rights of disabled employees to treat their medical conditions, and the rights of employers to ensure a safe workplace for employees and customers.   For example, in Barrett v. Robert Half Corp., Plaintiff Thomas Barrett was a medical marijuana cardholder who worked for a temporary staffing agency.  Barrett informed the temp agency of his cardholder status upon hire, and was initially employed without incident.  However, he was later terminated when he received a work assignment requiring a drug test – which he failed.  In the pending suit in Federal Court, Barrett alleges that he is disabled under the New Jersey Law Against Discrimination (“NJLAD”), and that the staffing agency failed accommodate his medical marijuana use.  In a pending Motion to Dismiss, the staffing agency argued that marijuana use cannot be a reasonable accommodation because it is illegal under federal law, and that a positive drug test is good cause for discharge.  Plaintiff opposed the Motion, arguing that the NJLAD should be broadly construed to protect disabled individuals, including medical marijuana users.  The Court has not yet ruled on the Motion.

The Takeaway for Employers

While reasonable accommodations for marijuana use remain a pipe dream for advocates, the Barrett case and others like it bear watching.  Under the right circumstances, a court could rule that an employer has a duty to accommodate a disabled employee’s off-duty medical marijuana use.  For example, some forms of medicinal marijuana (such as strains used to treat children with epilepsy), contain very little of the psychoactive chemical “THC” found in most marijuana plants.  It would be difficult to argue that this type of off-duty use would negatively impact performance or safety.  Complicating the matter further, a positive test for marijuana does not necessarily mean an employee is impaired.  Urine tests—the most popular form of drug testing—measure not THC itself, but a non-psychoactive byproduct of THC created in the liver than can linger for weeks.

For now, courts and legislatures in almost all states have spared employers from the potential dilemma of having to accommodate a positive drug test for marijuana, allowing employers to enforce far less hazy “zero tolerance” policies.  However, employers in New Jersey, Pennsylvania and other states should stay tuned in to legal developments in this area, in case medical marijuana (like telecommuting before it) becomes the next hot topic in disability accommodation law.


Ivo Becica- 3394Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or ivo.becica@obermayer.com

***

HR Legalist thanks Tara Dickson for her research assistance in creating this blog post.