October 2018

“Mary Jane, oh Mary Jane. You conquered me like Charlemagne”

—“Reefer Madness: The Movie Musical,” by Kevin Murphy, directed by Andy Fickman, produced by Andy Fickman, Kevin Murphey, and Dan Studney, 2005.

by Mary E. Buckley, Cross, Gunter, Witherspoon & Galchus, P.C.

There are over 420 songs and over 120 movies about and/or with marijuana. From 2005-2012 there was a popular Showtime series where the main character sold marijuana in an upscale suburban neighborhood, aptly called “Weeds.” Eleven former U.S. presidents have smoked marijuana. Canada recently declared marijuana legal nationwide. Coca-Cola is considering a move into cannabis-infused beverages. Lagunitas, a craft beer label of the brewing giant Heineken, already has a drink infused with tetrahydrocannabinol, better known as THC (that ingredient that produces a high). Eight states plus the District of Columbia have legalized recreational marijuana. Thirty states plus the District of Columbia have legalized the use of marijuana for medical purposes. Weed rules the world, or so it seems, as cannabis companies are even buying entire towns to create tourist destinations.

“The Times They Are a Changin’”

—Bob Dylan, “The Times They Are A Changin,’” The Times They Are A-Changin’, Columbia Records, 1964.

The widespread legalization of marijuana, whether recreational, medical, or both, is a reality that employers must face. With polls showing that 64 percent of Americans support making recreational marijuana use legal and around 90 percent support for allowing medical marijuana, lawmakers are increasingly realizing the public supports marijuana policy reforms. Reforms take the form of state constitutional amendments, voter ballot measures, and legislative action.

In January 2018, Vermont became the first state to legalize marijuana legislatively, and the New Hampshire House of Representatives approved a similar bill. Vermont’s new law, which took effect on July 1, allows adults to grow and possess a limited amount of marijuana, while a task force continues to explore regulating and taxing sales. Meanwhile, New Jersey’s new incoming governor has made legalizing, regulating, and taxing marijuana a goal of his administration, and the Northern Mariana Islands (a U.S. territory) Senate and House voted for bills to legalize and regulate marijuana for adults and patients. Several other states considered allowing medical marijuana or replacing possible jail time with fines for marijuana possession.

In a handful of states, voters themselves are deciding marijuana policy. On June 26, 2018, Oklahoma voters approved a medical marijuana ballot initiative. On November 6, 2018, voters in Michigan and North Dakota will consider initiatives legalizing and regulating marijuana for adult use. Also on Election Day, voters in Utah and Missouri will decide the fate of medical marijuana ballot measures.

Ready or not, marijuana is entering the work place and complicating matters for employers.

“I was gonna go to work but then I got high

I just got a new promotion but I got high

Now I’m selling dope and I know why (Why man?)

Because I got high. Because I got high. Because I got high…”

—Afroman. “Because I Got High.” Because I Got High, T-Bones Records, 2000.

In 2010, the Department of Justice estimated that the economic cost of alcohol and drug abuse is $215 billion annually. The Department of Health and Human Services found that 13.1 million drug abusers were employed in 2007. A private study conducted in 2015 found that the percentage of employees testing positive in post-accident urine testing has been increasing. As only 20 states remain with no form of legalized marijuana, employers should be prepared to address the complex workplace issues that will inevitably arise as employers seek to juggle newly created protections for marijuana users with maintaining a safe and productive workplace.

An employer should treat the recreational use of marijuana, as in the use without being “registered” as a cardholder or medical marijuana user, as it treats recreational alcohol use, with the additional understanding that unlike alcohol, marijuana is still illegal under federal law. Therefore, even though recreational use of marijuana may be legal in that state, employees can be terminated for recreational use, if such is a violation of the employer’s policy, without the employer liability.

The question remains, however, regarding what medical marijuana means for the workplace and/or a company’s drug testing policies. As President Clinton said “it depends upon what the meaning of the word ‘is’ is.” As in answering the question is not easy as employers would hope.

The answer will depend on the medical marijuana legislation in the state(s) in which the company does business, the company’s substance abuse policy, and the company’s temperament on the same. In the backdrop, ever present, is federal law, which continues to classify marijuana as a highly controlled, Schedule I drug.

While the Department of Justice has allowed states to legalize marijuana for medicinal and recreational use, marijuana remains an illegal drug under federal law. Thus, federal grant recipients and contractors must adopt a zero-tolerance policy for drug use and certify that the workplace is drug free. Moreover, for employers in safety-sensitive transportation industries, the Department of Transportation has made it clear that a state issued marijuana license is not a valid medical explanation for a positive drug test result. Accordingly, the DOT expects that medical review officers will treat marijuana, whether used recreationally or medicinally, as a Schedule I illegal drug.

Some good news for employers is that DOT regulations will also apply for employees not regulated by the DOT, as most MROs will follow the testing guidelines established by the DOT for all drug testing. This means that even when an employee informs the MRO that he or she is a registered card holder, the MRO will report the test as positive, and will include some notation of the employee’s claimed medical use.

Most individuals certified to use medical marijuana will be so certified because they suffer from a condition that may also be a disability. Under the Americans with Disabilities Act, “qualified individuals with a disability” are protected from discrimination and are entitled to reasonable accommodation. However, a person who is “currently engaging” in the illegal use of drugs is not a “qualified individual with a disability.” As the ADA is a federal law, and marijuana is still illegal under federal law, the ADA would not serve to protect the marijuana use. Employers should note that some medical marijuana states afford protections to registered medical marijuana users and those protections may require employers to engage in an interactive process, practically identical to that required under the ADA, to see if a reasonable accommodation can be made for that employee under the circumstances.

This means that if an employee in one of these states, such as Arkansas or Massachusetts, is using marijuana with a medical card, employers cannot fire them merely on that basis. In other states, like California, employers do not have to make accommodations, even for off-duty medicinal use. Thoughts and attitudes about medical marijuana use are changing, and as thoughts evolve so could the case law in states like California and other states without employee protections. An underlying issue is that a medical marijuana cardholder may have an independently qualifying medical condition. Therefore, employers aware that an employee is a registered medical marijuana card holder may want to engage in an interactive process even if it’s not required by law.

It is important to note that employers do not have to tolerate on-the-job intoxication even if a worker is using marijuana for medical reasons, so accommodations might include additional time off or a leave of absence for the period the worker needs to use the drug. Workplace policies should clearly state that employees cannot be drunk or high at work.

“Let’s just light it up and see what happens.”

— Tommy Chong

Employers should also be aware that testing positive for marijuana under some drug tests, such as urinalysis, does not necessarily prove that the employee was “under the influence.” Metabolites of marijuana may remain in the user’s system for weeks after use, well after the effects of impairment have worn off. This is important because, under some state initiatives and marijuana laws, an employer would likely be required to prove that an employee either used marijuana on the job or showed up to work “under the influence” before taking adverse action against the employee on the basis of medical marijuana usage. A positive marijuana drug test without additional proof of impairment will likely be insufficient to prove that an employee was “under the influence.”

How will employers prove that an employee is “under the influence”? Will employees be able to bring wrongful termination claims under the initiative’s broad civil protections and non-discrimination clause? It is highly likely that they will. Will a positive marijuana drug test result be sufficient to disqualify an employee from receiving unemployment benefits or workers’ compensation benefits? Will employers be required to pay for medical marijuana treatments as part of workers’ compensation? Courts in some jurisdictions with medical marijuana laws have addressed these concerns, and while most have ruled in favor of employers, other state marijuana initiatives create relatively robust protections for employees. To further muddle the mess, there have been courts in those states with protections for medical use that have addressed the issue and ruled against the employer. Consequently, there is no way to accurately predict how courts in those states will choose to interpret the language of the initiatives moving forward.

“Last dance with Mary Jane

One more time to kill the pain”

—Tom Petty & the Heartbreakers. “Mary Jane’s Last Dance.” The Greatest Hits, Musical Corporation of America, 1993.

Despite the uncertainty surrounding these issues, proactive employers can take steps to ensure that they do not run afoul of a state’s marijuana laws while maintaining a safe, productive workplace. Employers should keep abreast of developments in the laws governing these issues, including laws on drug testing. If appropriate, employers can adopt a pre-duty prescription medication and impairing effects substances safety policy with a third-party drug testing lab.

Further, employers can update job descriptions and adopt a fitness-for-duty policy to reflect the essential job functions of each position and include language requiring employees in safety-sensitive positions to have the ability to work in a constant state of alertness and in a safe manner. Employers may adopt an ADA compliant handbook policy on reasonable accommodations. Finally, employers can train supervisors to spot and document objective, observable symptoms of potential marijuana impairment. Whatever steps an employer chooses to take, it is imperative that employers make their position of marijuana clear to employees. The laws on medical marijuana in the workplace are constantly evolving, but courts in states that have had to address these types of issues tend to favor employers who are aware of the law and make a good faith effort to comply with it.

Mary E. Buckley is an associate with Cross, Gunter, Witherspoon & Galchus, P.C., in Little Rock, Ark. She can be reached at (501) 371-9999 or mbuckley@cgwg.com.

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