As of today, 23 states and the District of Columbia have passed laws providing for the legal use of medical marijuana. Four of these states and the District of Columbia have legalized the recreational use of marijuana. Legislatures in other states are seriously considering laws that would permit the medical use of marijuana.
Because the law varies from state to state, it is often unclear what, if any, accommodations employers are required to provide to employees who use medical marijuana. In addition, some state laws include provisions that prohibit discrimination in the workplace against employees who use medical marijuana.
Although state laws generally do not permit marijuana use during working hours, on the employer’s premises or when use could create a safety hazard, these laws often directly conflict with an employer’s zero-tolerance drug policy or other policies that may prohibit the use of marijuana. Adding to the confusion for employers, marijuana still is an illegal drug under federal law.
Even more confusing for electronic security providers is what effect, if any, a security employee’s use of medical marijuana may have on the electronic security employer.
What’s an Employer to Do?
If you operate a business in a state where use of marijuana is legal — either for medical uses or generally — you need to review applicable state law before taking any action against an employee in connection with the employee’s use of marijuana for medical reasons.
State law requirements vary, and your state may include an anti-discrimination provision or may require a duty to attempt to accommodate the employee under state law. Even in the absence of such provisions under a state’s medical marijuana law, an employer should be aware of other potential risks.
What are Some of the Risks?
Some states have laws that prohibit employers from taking adverse actions against employees for engaging in lawful conduct while off-duty. For example, the Colorado Supreme Court recently addressed a challenge under such a law by an employee who was terminated because he tested positive for marijuana in violation of his employer’s zero-tolerance drug policy.
The employee was a medical marijuana user, which was lawful under Colorado state law. There was no evidence that the employee used marijuana while at work or that he was impaired or otherwise under the influence of marijuana while at work. The employee claimed that his termination was improper because it was based on lawful activity (i.e., off-duty use of medical marijuana).
The Colorado Supreme Court rejected the employee’s argument, holding that because marijuana remained illegal under federal law, the employee could not rely on Colorado’s lawful off-duty conduct law.
Federal and state laws that prohibit discrimination based on disabilities, such as the federal Americans with Disabilities Act (the “ADA”), also may create potential risks for employers dealing with employees who legally use medical marijuana under state law to treat a recognized disability. The ADA, however, does not provide protection to persons engaged in the use of illegal drugs. As marijuana remains illegal under federal law, it is unlikely that an employee who is discharged or suffers some other employment action because of the use of medical marijuana will find protection under the ADA. Nevertheless, the risk remains that an employee who suffers an adverse employment action based on his or her use of medical marijuana could assert a claim under the ADA or a similar state law.
As laws in this area continue to develop and change, employers should review their workplace drug policies to make sure that they are up to date and comply with current applicable state and local laws. In addition, employers should consult with their employment counsel when they intend to discipline or discharge an employee in connection with marijuana use, particularly in states where the use of marijuana is legal for either medical or recreational purposes.
Eric Pritchard is a Philadelphia lawyer who spends his workday making the world safe for electronic security providers. He can be reached at [email protected]. This column does not constitute legal advice; please contact an attorney with questions.
