As this issue went to press, legislators in Illinois, Minnesota and New Hampshire were considering legalizing the use of marijuana for medical reasons. If the laws pass, these states will join 15 others with laws criminalizing use of marijuana for medical use. They include Alaska, California, Colorado, Hawaii, Maryland, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.
Employers in these states can find themselves between a rock and a legal hard place. What issues do you need to consider?
Federal drug laws:
Federal law currently bans the use of marijuana under the U.S. ControlledSubstance Act. Further, the Drug-Free Workplace Act of 1988 applies to some federal contractors and all federal grantees. If the law applies to your organization, you must agree to provide a drug-free workplace. Failure to comply can result in penalties, including suspension of payments, termination of contracts or grants and being barred from receiving future contracts or grants from any federal agency for up to five years.
Court decisions:
Gonzales v. Raich, a Supreme Court case decided in 2005, addressed one aspect of state versus federal power to control the use of drugs. California residents Angel Raich and Diana Monson brought suit against
the federal Drug Enforcement Agency (DEA), which had broken up some of California’s medical marijuana co-ops on the premise they violated the federal Controlled Substances Act (CSA), although the co-ops were legal under the state’s Compassionate Use Act of 1996.
Raich and Monson sought an injunction, claiming that local cultivation and use of marijuana under California’s Compassionate Use Act was not interstate commerce and therefore did not fall under the authority of the federal CSA. The court disagreed, and in a 6-3 decision, upheld the validity of Controlled Substances Act. As a result of Gonzales v. Raich, employers can refuse to accommodate medical marijuana use on
the grounds that it is an illegal activity prohibited by federal law.
Federal employment discrimination laws:
However, in the states that have decriminalized medical marijuana use, you might have to deal with employment discrimination problems.
Although employers have no legal obligation to accommodate workplace use of medical marijuana, you will want to consult an employment attorney before firing or taking disciplinary action against a registered medical marijuana user. The condition for which the user takes marijuana may be a protected disability under the Americans with Disabilities Act; taking employment action could lead to a claim of discrimination under the ADA.
State laws:
Many states have considered legislation that would clarify an employer’s obligations to accommodate medical marijuana use. For example, Oregon voters legalized marijuana use for medical purposes in 1998. In the current session, legislators are considering several bills to clarify the law and help employers navigate the minefields of medical marijuana use. HB 2503 would prohibit medical marijuana use on the employer’s property or during employment hours; it also would prohibit employers from discriminating against employees for possession of a medical marijuana registry card or medical use of marijuana outside the hours and premises of employment. HB 2881 would establish procedures for employment-related marijuana testing. HB 3052 would clarify that employers have no obligation to accommodate medical use of marijuana “in any workplace, regardless of where the use occurs.”
For more state-specific information on drug use and workers’ compensation, please contact us.