The Hospitality Lawg would like to thank Holli Hartman for submitting this post.  Holli works in our Denver Office and her practice focuses on employment counseling and litigation, with an emphasis on providing guidance to employers to avoid litigation.  Holli is also a contributor to our sister blog, the Employment Class Action Blog.

Accommodating disabilities in the workplace can be a confusing enough process for employers.  But if you have employees in one of 16 states or Washington, D.C. where state and local laws have legalized marijuana for medical purposes, you could be both dazed and confused about what to do.  Courts in some states are starting to provide a little guidance, but many employers are struggling with questions about whether to modify workplace policies, such as drug testing.  Some sticky legal issues, including federal preemption of state laws, whether medical marijuana patients must be accommodated under state anti-discrimination acts, and whether a patient has a legal off-duty right to use medical marijuana, remain unresolved in many jurisdictions.

Courts’ Rulings on Medical Marijuana in the Workplace

Only a handful of cases have resulted in decisions that provide some guidance to employers regarding their potential liability in these situations.  Almost all have sided with employers who have attempted to keep marijuana out of the workplace.  Employees’ attempts to rely upon the medical marijuana acts themselves, the ADA or state anti-discrimination statutes requiring an employer to accommodate a disability, or common law wrongful discharge causes of action have failed.  For example:

  • In June 2011, the Supreme Court of Washington held that the Washington Medical Use of Marijuana Act does not create a private cause of action for discharge of an employee who used medical marijuana and noted that the act had been amended to state that “Nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment…”
  • In February 2011, the U.S. District Court for the Western District of Michigan, applying Michigan law, ruled that the Michigan Medical Marihuana Act does not provide a private right of action against employers who terminate medical marijuana users.  It also held that the discharged employee could not recover under a wrongful discharge theory.
  • In 2010, the Oregon Supreme Court held that an employee terminated for medical marijuana use had no claim for relief under Oregon’s anti-discrimination statutes, which for disability cases tracked and relied upon federal ADA law.  The ADA states that an employer need not accommodate an employee’s use of illegal drugs.  Although the court found that medical marijuana is an “authorized substance” under state law, the state law was preempted by the Controlled Substances Act, which makes marijuana illegal for medicinal use.
  • In 2009, the Supreme Court in Montana determined that an employee terminated for testing positive for marijuana use could not state a claim under either the ADA or Montana’s Human Rights Act for an employer’s failure to accommodate his medical marijuana use.
  • In 2008, the Supreme Court of California similarly held that medical marijuana patients cannot recover for discrimination under the state’s Fair Employment and Housing Act because the California Compassionate Use Act’s narrow purpose is to exempt medical users and their primary caregivers from criminal liability under state criminal statutes.

Statutory Protections for Employees

Some states, however, have written protections for medical marijuana users directly into their statutes.  Here are two exemplary provisions:

  • Arizona’s statute states that “Unless failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: (1) the person’s status as a cardholder [or] (2) a registered qualifying patient’s positive test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment during the hours of employment.”
  • Rhode Island’s statute states that “No school, employer or landlord may refuse to enroll, employ or lease to or otherwise penalize a person solely for his or her status as a cardholder.”  However, the chapter shall not permit “any person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice” or require “an employer to accommodate the medical use of marijuana in the workplace.”

Whether state courts determine that these types of provisions provide a private right of action for employees or require employers to make accommodations remains to be seen.  Courts have yet to address the issues.

What’s an Employer to Do?

Because this area of law is still in its relative infancy, employers and those who advise them should keep their eye on court and legislative developments in their respective states.  Employers, for now, appear to have plenty of defenses for maintaining the status quo in their drug testing programs or drug-free workplace policies.