Changing Marijuana Laws and Effective Drug Testing PolicyAlthough marijuana is classified as an illegal drug under federal law, a majority of states have now legalized its use in one form or another. This rapidly evolving legal landscape presents new challenges for employers, particularly those with offices and employees in several states. Employers must balance complying with often divergent federal and state laws, maintaining a safe work environment, and protecting employees’ rights. Although difficult at times, there are steps employers can take to help successfully navigate this legal minefield.

Maintain a Safe Workplace

Workplace accidents can have significant effects on multiple areas of a business, including insurance costs, personal injury claims, third-party claims, and employee satisfaction and productivity. An employee’s impairment from drugs or alcohol can seriously increase the risk of injury to persons and damage to property. Accordingly, most employers have zero-tolerance policies that ban the use of alcohol and illegal substances. Although zero-tolerance policies typically permit an employee to avoid adverse employment actions by disclosing the use of prescription drugs prior to a positive drug test, these policies otherwise prohibit the off-site consumption of alcohol or drugs that will result in a positive test. The legalization of medical marijuana in a number of states has made maintaining a zero-tolerance policy more difficult.

In some states, employers must accommodate an employee’s use of medical marijuana. For example, in Noffsinger v. SSC Niantic Operating Co., LLC, a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user. Similarly, Oklahoma law prohibits employers from discriminating or punishing an employee based on the employee’s status as a medical marijuana card holder or a positive drug test for marijuana or its components unless the employer would lose a benefit under federal law or regulations. Although these statutes do not prohibit employers from disciplining employees who consume marijuana, or are under its influence, while on the job, it may be difficult to determine when an employee is actually impaired and a drug test is warranted. This difficulty can give rise to liability for discriminatory drug testing or wrongful employment actions in instances where a contractor is mistaken.

Other states that have legalized medical marijuana do not require accommodation of employees’ use. In California, for example, an employer can dismiss an employee who tests positive for marijuana and its components. Likewise, under Ohio law, employers are not prohibited from refusing to hire, discharging, or disciplining a person because of the use or possession of medical marijuana, nor are they prohibited from establishing and enforcing a zero-tolerance drug policy.

Between these two ends of the accommodation spectrum, a number of states’ laws provide for varying levels of accommodation for employees’ medical marijuana use. In Illinois, for example, employers are prohibited from discriminating against employees and job applicants who qualify as a medical marijuana patient unless the accommodation would result in the violation of a federal law or the loss of a federal benefit. Nonetheless, Illinois employers may still impose reasonable limitations on the consumption of medical marijuana and enforce zero-tolerance and drug-free workplace policies as long the policies are applied in a non-discriminatory manner. Other states, such as Delaware, Nevada, New York, and West Virginia, have similarly varied degrees of required accommodation.

To help navigate these nuanced laws, employers, especially those with a multi-state footprint, should develop a well-defined drug policy and administer a drug testing program in a non-discriminatory manner.

Develop a Well-Defined Drug Policy

Developing a well-defined company policy on marijuana use can minimize the risk of harm to persons and property, and decrease the likelihood that drug testing and disciplinary action arising from marijuana intoxication will open the door to liability for adverse employment decisions. At a minimum, employers should ensure that a company drug policy:

  • Defines the terms “marijuana,” “cannabis,” or any other derivation of the drug. Simply prohibiting the use of “illegal drugs” can create ambiguity because of marijuana’s legal status in various jurisdictions.
  • Indicates that the use of marijuana, whether recreationally or on the job, is strictly prohibited.
  • Articulates drug testing policies and procedures (including penalties for failing a drug test).
  • Educates employees on clinical issues relating to marijuana, such as its effects on the body, the length of time it can continue to impair cognitive and physiological functions, and the potential impacts on workplace safety and performance.
  • Is included in recruiting and new-hire onboarding materials to ensure notice to the individual.

Consistently Administer a Drug Testing Program

Once an employer adopts a drug policy, it is critical that drug tests are conducted uniformly for all employees. Failure to do so can subject an employer to liability for discrimination claims that arise from adverse employment actions.

If an employee tests positive for marijuana, the recourse available to an employer can vary greatly under federal and state laws. For example, the Americans with Disabilities Act (ADA) currently does not shield an employee from adverse employment actions for using marijuana to treat a disability, even if the employee refrains from using medical marijuana while on the job. The ADA exempts from its scope the “illegal use of drugs” and defines that term to include any substances that are unlawful under the Controlled Substances Act, which currently lists “marijuana” as a banned substance. As a result, at least under the ADA, employers can terminate an employee who tests positive for marijuana, even if that employee is disabled, prescribed medical marijuana, and only uses marijuana on his or her own time. Note, however, that under the ADA, if an employee discloses a disability and requests an accommodation, an employer is required to consider reasonable accommodations, which could include transfer to a non-safety sensitive job (where the marijuana use may not pose a safety concern) or temporary leave during treatment.

By contrast, as discussed above, some states require an employer to accommodate an employee’s use of medical marijuana and prohibit an employer from terminating an employee for a failed drug test for marijuana use. Employers should be mindful of the potential for conflict between their own drug testing policies and requirements mandated by federal or state laws. If there are questions as to what actions an employer can take against an employee for failing a drug test, the advice of legal counsel should be sought.

The Measure of Success

An effective drug policy decreases hazards and promotes an accident-free work environment. While state and federal laws meant to promote this goal may seem straight forward when read in isolation, problems arise when these laws overlap or conflict with one another. The growing number of states legalizing marijuana use, and the nuanced differences between laws, will only amplify this problem. Although all employers need to implement well-defined policies and procedures, it is particularly important that those employers operating in any of the 30 plus states in which marijuana is now legal in some form take time to review current policies and evaluate the need for changes to ensure employee safety and reduce company risk. If you have questions about this rapidly changing legal issue, you should contact an attorney with experience in this emerging area of the law.

Weeding Out a Job Candidate, Literally: Connecticut Court Weighs in on Medical Marijuana Laws and Drug TestsWhat do you do with employees who use “legal” marijuana in violation of your Drug-Free Workplace Policy? So far, 30 states and the District of Columbia have enacted laws permitting use of marijuana for medical purposes, and eight states and the District of Columbia have legalized recreational use. Several other states are currently considering similar legislation. As marijuana use becomes increasingly permissible under state law, but remains illegal under federal law, many employers are left wondering how to enforce their existing drug-testing or drug-free workplace policies. Can you apply your no tolerance drug policy to a medical marijuana user? Not according to one federal court in Connecticut.

The Facts

Connecticut’s law prohibits employers from terminating or refusing to hire a person “solely on the basis” of that person’s “status as a qualifying patient” who uses medical marijuana. In Noffsinger v. SSC Niantic Operating Company, LLC, the court held that SSC violated the Connecticut law when it rescinded a job offer to Katelin Noffsinger after she failed a pre-employment drug test due to her use of medical marijuana.

Ms. Noffsinger accepted SSC’s job offer, but the offer was contingent on her passing a drug test. Before she took the drug test, Ms. Noffsinger disclosed that she suffered from PTSD, and that she was a registered participant in Connecticut’s medical marijuana program to treat it. She informed SSC that she used medical marijuana in the evenings, not during working hours. She even showed SSC a copy of her registration certificate required by the law and an empty pill container that showed the name and dosage information of her marijuana pills. Unsurprisingly, her drug screen was positive for marijuana, and SSC rescinded her job offer. Ms. Noffsinger sued for violation of the Connecticut law, and SSC removed the case to federal court.

SSC asserted that the positive drug test disqualified Ms. Noffsinger for the job because SSC, a federal contractor, adopted a drug testing policy that followed the federal law and “medical marijuana is not an approved prescription” under the drug-testing program. In its defense, SSC emphasized that, as a federal contractor, it was required to follow the federal Drug Free Workplace Act, and that the federal act preempted the Connecticut state law.

The court rejected this argument, noting that the federal law requires federal contractors to make a “good faith effort” to maintain a drug-free workplace, but does not require a zero-tolerance drug-testing policy such as SSC’s policy. Instead, the court held that the federal law is focused on preventing use of drugs in the workplace, not use of any drugs outside of the workplace, much less the use of medical marijuana.

SSC also argued that the Connecticut law only protects against discrimination based on a person’s “status” as a medical marijuana user, not their actual “use” of the drug. Given that SSC did not rescind Ms. Noffsinger’s job offer when she disclosed her “status” as a participant in the medical marijuana program (only after she failed their standard pre-employment drug test), SSC argued that it did not base the decision on her status. The court said this argument “made no sense,” and would frustrate the purpose of the state law’s anti-discrimination provision — to protect people who use medical marijuana from adverse action by their employers.

Takeaways

For employers, this case is a reminder to be aware of any local or state laws regarding medical or recreational marijuana use that may apply to your employees. If you aren’t sure whether your state has legalized marijuana in some form, do some research. Although not every court is going to agree with this Connecticut decision, don’t assume that relying on federal law, or continuing to enforce the drug-testing policy you’ve always used, will avoid liability.

Happy Thanksgiving and the Many Things for Which We Are ThankfulBefore everyone gets out of the office to their various homes and families to celebrate the holiday, we wanted to review the year and count our blessings. Not only are we thankful that our families and colleagues in our Houston and Tampa offices weathered the storms safely, we are also thankful for the following legal stuff:

1. The DOL is not about to change the wage and hour laws.

Does anyone else remember the panicked calls last Thanksgiving week when the Texas judge put the brakes on a regulation that was going to increase the salary basis test? We are all thankful that will not happen this year. Although we still don’t know what, if anything, will happen on that front we will keep you posted.

2. Finally a court has said the ADA is not about leave.

Despite the EEOC’s insistence otherwise, the Seventh Circuit stepped up to the plate and said extended leave is not a reasonable accommodation under the ADA. As we all know, you still need to consider if a limited amount of leave will get the employee back to work but we are thankful that we have some new case law on this front.

3. Harvey Weinstein doesn’t work for us.

This story has horrified many but given all employers a wake-up call. We are grateful for the opportunity to train more people and try to make America a better place to work.

4. The NLRB has a new direction.

Maybe the new Board won’t tell employees that it is okay to swear at your boss on Facebook or nitpick employer policies quite so much.

5. You’re not going to be the employer of someone else’s employees.

DOL has withdrawn its prior guidance on independent contractor and joint employer liability, and Alabama’s Rep. Byrne has introduced a bill to “Save Our Small Businesses.”

6. Legalized marijuana has made questions about drug policies so much more interesting.

Even though it isn’t legal in many states, the fact that employees can legally ingest marijuana many places (including Florida) and take their chances on the looming random drug screen has spiced up our lives. While the law will continue to develop in this area, we are grateful for the very interesting questions we have received.

7. People other than our mothers read this blog.

(Okay, some of our moms are reading and might boost the numbers a little bit.) Since 2016, we have published more than 130 articles and had more than 230,000 reads, according to aggregate reports from Lexology and JD Supra. We have received recognition in The Expert Institute’s Best Legal Blog 2017 competition, the ABA Journal’s Web 100 Ranking, and numerous quotations in other publications. We enjoy bringing you this information and love it when you tell us it is helpful or tweet it to someone else.

Happy Thanksgiving from the Labor & Employment Insights blog team!