Labor / Employment, On The Job

Labor And Employment Deep Dive: Marijuana And The Workplace

The patchwork of marijuana laws across the U.S. has made this a confusing topic for just about everyone.

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Ed. note: This article is the first in a series of Deep Dive articles in which Evan Gibbs will take an in-depth look at a specific area or issue in labor and employment law.

I get a lot of questions about drug testing in this age of medical marijuana.

Employers ask: Can I fire an employee if he or she tests positive for marijuana on a random drug test?

Employees ask: Can I have a job offer rescinded if I test positive for marijuana on a pre-employment drug screen?

All but four states in the U.S. presently allow either medical marijuana or CBD/low-THC access for their citizens. While there are certainly some trends and similarities between some states, most state laws currently contain their own nuances that may be similar to or very different from federal law.

Below I break this issue down into two parts: An explanation of marijuana laws in the U.S. followed by an explanation of drug-testing laws in the U.S. as they relate to marijuana.

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A Brief History of U.S. Marijuana Laws

The Controlled Substances Act

I’ll start with the obvious: Marijuana is still illegal under the federal Controlled Substances Act (CSA) as a Schedule I substance (just as it has been for almost 50 years). Schedule I drugs, according to the CSA (which was passed in 1970), have no medicinal value and a high potential for abuse.

Here’s an interesting point I wasn’t aware of until I started researching this article. After the CSA was passed into law, Congress created the National Commission on Marihuana and Drug Abuse to study the health and psychological effects of marijuana, as well as its impact on crime and use of other drugs.

The Commission released its findings in 1972. The Commission’s findings rejected the CSA’s total prohibition on marijuana, stating “[t]his policy grew out of a distorted and greatly exaggerated concept of the drug’s ordinary effects upon the individual and the society.” The Commission recommended decriminalization and further research.

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But Congress rejected the Commission’s findings and has kept marijuana listed as a Schedule I substance.

 

A researcher examining the benefits of marijuana.

The Evolution of State Law

After the CSA was passed, states began decriminalizing marijuana as early as 1973, with 13 states in some way effectively decriminalizing it by 1978. California voters later approved Proposition 215 (the Compassionate Use Act) in 1996, which was the first state law allowing the medical use of marijuana. Other states began slowly following suit, either passing legislation to decriminalize marijuana or to permit use for medical purposes.

Fast forward to 2012. Washington and Colorado become the first two states to legalize recreational marijuana. Waves of states then begin to decriminalize marijuana and more approved it for medical use — even though it continues to be illegal under federal law.

The Ogden, Cole, and Sessions Memos

With medical marijuana rapidly becoming legal in many states, former Deputy Attorney General David Ogden released a memo in 2009 addressed to federal prosecutors saying that prosecution of seriously ill individuals using marijuana in compliance with state law was an inefficient use of federal resources.

Former Deputy Attorney General James Cole then issued a memo in 2013 which outlined eight specific high-level enforcement priorities but explained that the Department of Justice “has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws.”

But on January 4, 2018, former Attorney General Jeff Sessions issued a memo to federal prosecutors rescinding the Ogden and Cole memos. In his memo, Mr. Sessions stated that federal prosecutors “should follow the well-established principles that govern all federal prosecutions.” The Sessions memo is still in effect even though Mr. Sessions is no longer the Attorney General.

Despite the initial shock of the Sessions memo, the U.S. government has not launched a marijuana crackdown and federal prosecutions for marijuana-related offenses have continued to decline.

What’s Legal and Where It’s Legal Right Now

As of the date of publication of this article, the following jurisdictions 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.

Workplace Drug Testing

Employers drug test their employees for a lot of different reasons. Some employers are required to drug test their employees under federal or state laws. For example, commercial truck drivers are required to undergo drug testing under federal law and school bus drivers must be drug tested in many states.

Most states also provide statutory discounts to an employer’s workers’ compensation premiums if the employer implements a drug-free workplace policy requiring certain types of drug testing. Many employers also drug test as a component of their workplace safety programs to prevent employees from working under the influence and endangering the lives of coworkers and others.

Most states do not recognize a privacy right in the workplace sufficient to prevent or curtail drug testing of employees or prospective employees in the private sector. (Note that the same cannot for be said for government workers, as there is generally a constitutional privacy right against most drug testing by the government of its employees except in limited circumstances.)

There are some exceptions to this general rule in states like California that have recognized some level of privacy right limiting drug testing in some situations. But the general rule in most states is that private employers can test employees for drugs at the employer’s discretion.

If an employee or prospective employee tests positive for a drug like cocaine, an employer can almost always fire the employee or rescind a job offer. Some states require confirmatory testing before terminating an employee, but most states don’t have such a requirement.

The Americans with Disabilities Act

One limited statutory exception to the general rule that employees can be fired immediately for testing positive for drugs is the federal Americans with Disabilities Act (ADA). The ADA is designed to protect employees against discrimination due to a disability. “Disability” is defined broadly under the 2008 amendments to the ADA, and so the use of legally prescribed drugs will usually fall under the protection of the ADA. The ADA even recognizes alcoholism as a disability so alcohol testing by employers is limited in some situations.

There are a lot of medical conditions that qualify as disabilities under the ADA for which physicians have begun prescribing medical marijuana as a treatment. Some of those conditions are cancer, PTSD, Parkinson’s disease, and many, many others. If a patient was taking, for example, an opioid for pain management for a medical condition, then the employee generally could not be fired for testing positive if they have a valid prescription for the medication from their doctor.

But the ADA has a specific carve out exempting drugs that are illegal under federal law from its protections. Since marijuana is a Schedule I drug under the CSA, the ADA does not protect medical marijuana users. This was the conclusion reached by the Ninth Circuit in James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012). I’m not aware of a court reaching a different result under the ADA.

State Laws on Drug Testing and Medical Marijuana Use

While federal law does not currently provide protection to medical marijuana users who test positive in the workplace, some state laws are taking a different tack.

Several state statutes authorizing medical marijuana use also contain provisions prohibiting discrimination against employees for testing positive for marijuana. While this area of the law is quickly changing, the following states prohibit employers from terminating or rescinding a job offer solely for a positive marijuana test: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Oklahoma, Pennsylvania, Rhode Island, and West Virginia.

Courts in these jurisdictions seem to be following state laws. E.g., Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761 (D. Ariz. 2019) (finding that the employer discriminated against its employee under Arizona law when it fired her, a medical marijuana cardholder, solely due to a positive marijuana drug test).

Other states impose significant restrictions on an employer’s ability to terminate or rescind an offer for a positive test, such as Nevada, New York, and Massachusetts.

Many states, however, allow employers to terminate employees for testing positive for marijuana even though medical marijuana in some form is available for prescription in the state: California, Colorado, Michigan, Montana, New Jersey, New Mexico, Oregon, Washington, Florida, and Ohio.

One issue raised by marijuana advocates in those states is that detectible levels of THC can remain in an individual’s system for days or even weeks after consuming marijuana. Advocates argue therefore that medical marijuana users are unfairly targeted at work for purely off-duty medical use.

In the following states employers can almost certainly terminate employees for testing positive for marijuana use since the states either have no marijuana access program or because only CBD/low-THC products are permitted: Alabama, Georgia, Indiana, Iowa, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia, Wisconsin, Wyoming, Idaho, Kansas, Nebraska, and South Dakota.

Finally, it is unclear to me right now whether employers are permitted to terminate an employee or rescind a job offer for a positive marijuana test in the following states: Alaska, District of Columbia, Hawaii, Louisiana, Maryland, Missouri, New Hampshire, North Dakota, Utah, and Vermont.

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.

I hope this article has provided a little bit of clarity in a very confusing area of the law.

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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