“Up in Smoke” – What Every Employer Should Know About the -Changing Medical Marijuana Laws
Recent court rulings have leaned towards being more employee-friendly than in past rulings
With a majority of states in the country enacting medical marijuana laws, cannabis in the workplace has become a hot button issue for employers seeking to fashion appropriate workplace regulations for lawful cannabis users. These issues become particularly tricky for employers to navigate because cannabis remains illegal under federal law, and each state has different laws addressing the treatment of medical marijuana users in the workplace.
What’s Legal and Where It’s Legal Right Now
The following states allow recreational and medical marijuana use: Alaska, California, Colorado, the District of Columbia, Maine, Massachusetts, Michigan, Nevada, Oregon, Washington, and Vermont.
The following states currently allow medical marijuana: Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Missouri, Montana, Maryland, Minnesota, New Jersey, New York, New Hampshire, New Mexico, North Dakota, Oklahoma, Ohio, Pennsylvania, Rhode Island, and West Virginia.
The following states currently allow CBD/low-THC medical use: Alabama, Georgia, Indiana, Iowa, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia, Wisconsin, and Wyoming.
Four states allow no recreational or medical access to marijuana products in any form: Idaho, Kansas, Nebraska, and South Dakota.
Here are some key points for employers, as identified by a panel of attorneys at the recent 11th Annual American Bar Association Labor and Employment Law Conference.
1. All Marijuana Use Is Still Illegal Under Federal Law
Marijuana remains a Schedule I controlled substance under federal law, meaning that it is considered to have no medical benefits. As a practical matter, this means that there is no such thing as a prescription for medical marijuana., however, doctors have been known to work around this by recommending its use for medical reasons in states where its use is legal.
Of the 30 states and Washington, D.C., have legalized medical marijuana use; eight of those states have also approved recreational use. Some earlier laws explicitly stated that users didn't have employment protections, but some of the newer state laws have made things more complicated by providing employment protections to medical marijuana users—particularly under state disability laws.
Currently no state law provides employment protections for recreational use … at least not yet.
2. The Tide Is Turning
Historically, workers who were fired for off-duty medical marijuana use have lost lawsuits where they challenged their employer's decision. For example, in 2015, the Colorado Supreme Court found that even though a worker was permitted to use medical marijuana under state law, his termination was justified because marijuana is still illegal under federal law.
Recent judicial decisions, however, signal a shift in the way courts are approaching medicinal use. In May, a Rhode Island court sided with a job candidate who was passed over because she disclosed to her potential employer that she was a medical marijuana cardholder and would fail a pre-employment drug test. The court said the employer couldn't refuse to hire her because of her status as a medical marijuana cardholder.
In July, the Massachusetts high court held that a registered medical marijuana user who was fired for failing a drug test could proceed in state court with her disability discrimination claim. The employer in that case claimed that all marijuana use is a federal crime, and therefore, an accommodation for such use is unreasonable. But the court disagreed and held that, under the state's disability discrimination law, employees have the right to seek a reasonable accommodation for medical marijuana use.
The employer in that case didn't argue federal pre-emption, but in August, a federal district court in Connecticut rejected an employer's federal pre-emption argument. The court said that the federal Controlled Substances Act doesn't regulate employment and therefore didn't make it illegal to employ a marijuana user.
"These recent cases might represent the trend moving forward.
3. Testing Is Lacking
Legalization efforts at the state level may not change the implications of medical marijuana use in safety-sensitive industries or those that require drug testing under federal law, said Ellen Kelman, a union attorney with the Kelman Buescher Firm in Denver.
For jobs that aren't safety sensitive or don't involve federal regulations, arbitrators who are asked to resolve labor disputes are often more concerned with the impact a worker's behavior has on the job—rather than the legality of off-duty use, she said.
Unlike for alcohol, however, there isn't a widely accepted method of testing marijuana impairment, and therefore, existing testing methods may be unreliable. "Decades of illegality have hindered scientific understanding about marijuana," Kelman said. "You generally have no clue if your employees are impaired regardless of what their test shows."
Because it is difficult to detect impairment, arbitrators usually look at other types of evidence in the workplace, such as accidents and poor performance.
4. On-the-Job Use Isn't Allowed
Employers may want to review their drug-testing policies and consider their reasons for testing. In light of recent court decisions finding that registered medical marijuana users are protected under state disability laws, employers should also understand the importance of engaging in an interactive process and reviewing reasonable accommodation requests.
However, it's important for employers to note that even in states where lawful off-duty conduct or medical marijuana cardholder status are potentially protected, getting high on the job is never shielded.
The marijuana debate is also a hot button topic in pro sports.
Currently eighty-seven professional U.S. sports teams currently have athletes playing professionally in a state that legalized medical or recreational marijuana. Complicating matters further, nine professional Canadian teams compete with U.S. teams in predominantly American leagues—and on October 17, 2018, recreational use of marijuana officially became legal across Canada. However, regardless of state, federal, or international law, the World Anti-Doping Agency (WADA), National Basketball Association (NBA), National Football League (NFL), National Collegiate Athletic Association (NCAA), Major League Soccer (MLS), Major League Baseball (MLB), and Ultimate Fighting Championship (UFC) all ban the use of marijuana within their substance abuse policies. The National Hockey League (NHL) is the only professional sports league that does not include marijuana on its list of banned substances.
The marijuana debate within professional sports, like the rest of the country, is stronger than ever. Calls to remove marijuana from the list of banned substances have become more frequent, in line with the increase in recent suspensions and fines, alleged rampant use among professional athletes, and players openly advocating for legalization.
The NBA in particular are paying attention to this national debate.
During a recent interview with Bleacher Report NBA commissioner Adam Silver acknowledged the league and the Player’s Association have had discussions about the league’s marijuana policy for some time now.
Silver in the interview was quoted as saying “I don't want to speak for [NBPA executive director] Michele [Roberts], but she and I have a somewhat similar view on this, which is: We should follow the science," Silver said. "This is not an ethical issue for me. It's not a moral issue for me. I obviously see what's happening in states around America."
Ten states have legalized both the medical and recreational use of marijuana. Of that group, five are home to at least one NBA team: Oregon, California, Colorado, Michigan and Massachusetts.
In October 2017, former NBA Commissioner David Stern advocated for more leniency from the league regarding medicinal marijuana. Minnesota Timberwolves star Karl-Anthony Towns subsequently concurred with Stern's comments.
Silver told Beck the research on marijuana is something the NBA and the NBPA are examining.
"There's not as much, frankly, science out there as I would have thought, in terms of the medical efficacy of using medical marijuana," he said. "I don't mean to suggest that the people who say it's effective for them, that it's not. ... It's like a lot of issues we deal with in the league. It's a balancing of issues."
Silver also discussed the various considerations he's looking at when it comes to marijuana, especially in regard to players' mental health:
"I understand that for some players ... that marijuana is a way of dealing with those issues. It's a question: If we ban marijuana, what they'll then otherwise use? I've had players tell me, 'I don't smoke marijuana ... because you guys drug test and it's banned and I accept that. So instead, I was written a prescription by a team doctor for an anti-anxiety medication, and that medication makes me uncomfortable.' And I recognize that that medication may be worse for the player than smoking marijuana—even if marijuana isn't great for you. And I also recognize that if they don't want anti-anxiety medication and they can't smoke marijuana, they may drink more—which is perfectly legal. ... And that might be much worse for them."
Silver first expressed a willingness to reconsider the NBA's marijuana policy in August 2017, and it's clear he and others inside the league haven't stopped weighing the issue.
Closing Thoughts
The above patchwork of marijuana laws across the U.S. has made this a confusing topic for just about everyone. I don’t think we’ll see a comprehensive national solution in the next few years. I do firmly believe, however, that the de-scheduling of marijuana at the federal level is coming within five to 10 years, and that marijuana will likely be legal both recreationally and medically in all states in the next 10 years. But that’s just one guy’s opinion.