Managing Medical Marijuana at the Workplace Amid Evolving State and Local Law

Introduction [1]

In recent years, approximately eleven states and the District of Columbia have decriminalized the use of small amounts of marijuana for recreational purposes, as well as the use of cannabidiol (CBD), one of marijuana’s active ingredients. During the November 3, 2020 election, several more states continued this trend by passing ballot initiatives decriminalizing small-scale recreational marijuana use. However, because marijuana use remains illegal under federal law, the growing patchwork of state and local legalization initiatives present complicated questions for employers regarding how to address marijuana usage by employees.

This Alert analyzes common questions regarding current federal enforcement practices, the extent to which employers may prohibit employee off-premises or off-duty medical marijuana use, and whether employers must accommodate employees who are prescribed marijuana for medical purposes.

Discussion

Federal Criminal Law and the Current Federal Enforcement Practices

Marijuana remains a Schedule I controlled substance under the Controlled Substances Act (CSA), see 21 U.S.C. §§ 841(a)(1), 844(a), meaning that, with limited exceptions, its manufacture, distribution, and possession is a federal crime. The CSA takes precedence over state and local statutes to the contrary, so that marijuana producers and users may be charged with a federal offense even in states that have legalized those activities. In Gonzales v. Raich, 545 US 1 (2005), the United States Supreme Court held that the enacting the CSA was a lawful exercise of Congress’s commerce power that, under the Constitution’s Supremacy Clause, prevails over state statutes legalizing medical marijuana.

Marijuana enforcement at the federal level has remained in flux since Gonzales. In 2013, the Obama Administration’s Department of Justice issued a guidance memorandum instructing federal law enforcement agencies and prosecutors to focus their limited enforcement resources on marijuana-related activity that implicates strong federal interests, such as preventing marijuana revenue from going to criminal enterprises and cartels, and diverting enforcement activity from states in which it is legal under state law to states in which it is not. The memorandum recommended that “state and local law enforcement and regulatory bodies should remain the primary means of addressing” localized, small-scale marijuana use by individuals, particularly in states where marijuana use is legal to some extent. See James M. Cole, Deputy Attorney General, Memorandum for All United States Attorneys re: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013).

In January 2018, Attorney General Jeff B. Sessions issued new guidance, rescinding the 2013 memorandum and signaling that future prosecution decisions would be left to the US Attorneys. Specifically, the new guidance states that it is unnecessary to establish enforcement policies specific to marijuana-related activity; rather, federal prosecutors should exercise their discretion in accordance with “the well-established principles that govern all federal prosecutions,” and make enforcement decisions based on federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community. Despite this change in Department of Justice policy, however, federal marijuana prosecutions have continued to decline since they peaked in 2012. See Jefferson B. Sessions, Attorney General, Memorandum for All United States Attorneys re: Marijuana Enforcement (Jan. 4, 2018).

The federal government has taken a different approach regarding certain products containing CBD than it did with respect to marijuana. In 2019, the federal Drug Enforcement Agency (DEA) announced that drugs that include CBD with less than 0.1% of THC (tetrahydrocannabinols) are considered Schedule V drugs under the CSA, provided that they are approved by the federal Food and Drug Administration (FDA). See Schedules of Controlled Substances: Placement in Schedule V of Certain FDA-Approved Drugs Containing Cannabidiol; Corresponding Change to Permit Requirements, 83 Fed. Reg. 48,950 (Sept. 28, 2018). Schedule V drugs are those that are determined to “have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.” 21 U.S.C. § 801(1). This means that CBD products that have been approved by the FDA may be lawfully prescribed and that penalties for unlawful use are generally lower than they would be if they remained classified as a Schedule I narcotic.

Employee Medical Marijuana Use

May employers discipline employees for using medical marijuana? It depends.

The federal Americans with Disabilities Act (ADA) and Rehabilitation Act expressly exclude from coverage employees or applicants “who [are] currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a); 29 U.S.C. § 701(a); Although several jurisdictions have legalized medical or recreational marijuana use, none require employers to permit employees to use or consume marijuana in the workplace or on working time. [2] Similarly, almost all of those jurisdictions permit employers to take disciplinary action against an employee who is under the influence of or impaired by marijuana in the workplace or on working time, even if the employee legally used or consumed marijuana while off duty.[3] Decriminalization, in other words, bestows upon employees a defense to criminal prosecution, not an absolute, affirmative right to use medical marijuana against their employer’s policies.

Pennsylvania and West Virginia, however, take a more tolerant approach. They permit disciplinary action against an employee who is a registered medical marijuana user and under the influence of marijuana at work only if the employee’s use results in conduct that falls below the normally accepted standard of care for that position.[4]

None of the jurisdictions that have legalized or decriminalized recreational marijuana require employers to accommodate employees who are under the influence of marijuana in the workplace or on working time if the marijuana use was purely recreational. In contrast, some states have enacted medical marijuana statutes that prohibit discrimination based solely on an employee’s status as a registered medical marijuana cardholder.[5] Five of those states prohibit employers from terminating employees who are registered medical marijuana users simply because they are unable to pass a drug test.[6]

Furthermore, several courts have held that an employee’s off-duty medical marijuana use is protected under state medical marijuana statutes, as well as state laws prohibiting disability discrimination. Specifically, courts in Massachusetts, Connecticut, Rhode Island, and New Jersey have allowed employees to proceed with claims under comparable state disability discrimination laws where their employers subjected them to an adverse employment action based on their legal, off-duty use of medical marijuana to treat a chronic medical condition.[7] Likewise, the US District Court for the Eastern District of Pennsylvania has held that Pennsylvania’s Supreme Court likely would find that the state legislature “intended to create, … by implication, a private cause of action” for employees claiming discrimination under state’s Medical Marijuana Act.[8]

In allowing one such claim to proceed, the Supreme Court of Massachusetts held that an employee who legally used medical marijuana to treat a chronic medical condition was subjected to disability discrimination when her employer terminated her after she could not pass a drug test. The court stated that “where an employee is handicapped because she suffers from a debilitating medical condition that can be alleviated or managed with medication, one generally would expect an employer not to interfere with the employee taking such medication, or to terminate her because she took it.” Thus, where an employer has a drug policy prohibiting the use of marijuana, when lawfully prescribed by a physician, the court held that the employer must accommodate the employee’s medical marijuana use unless it can prove that permitting the use would result in undue hardship to the employer’s business. Central to the court’s decision, however, was the fact that the employee never used medical marijuana at work or reported to work under the influence of marijuana.[9]

Most jurisdictions that require employers to accommodate an employee’s legal medical marijuana use exempt employers who would jeopardize federal subsidies or benefits or otherwise violate federal law by doing so.[10] For example, the federal Drug-Free Workplace Act of 1988 (DFWA) requires entities, including employers, receiving federal contracts above $100,000, or a federal grant of any amount, to make good faith efforts to prohibit the manufacture, use, and distribution of controlled substances in the workplace.[11]

A recent case, State v. Maestas, 417 P.3d 774 (Ariz. 2018), raises questions about the extent to which an employer may rely on federal law to claim exemption from compliance with state laws requiring accommodations for employees who are legal medical marijuana users. In Maestes, the Supreme Court of Arizona struck down a criminal statute prohibiting marijuana possession on public university and college campuses because the statute impermissibly conflicted with Arizona’s medical marijuana law. Arizona argued that the statute was necessary to protect the eligibility of Arizona’s public universities and colleges to receive federal funding, due to their need to comply with federal laws requiring institutions of higher learning to adopt and implement a program to prevent the use of illegal drugs by students and employees. However, the court held that “failing to penalize a person solely for his status as a [medical marijuana] cardholder” would not cause a school to lose federal funding because “a university does not have to guarantee prosecution for violations” of a drug-free workplace program required under federal law. Although this case involved a criminal statute, courts could apply the same logic to adverse actions that employers take against employees who legally use medical marijuana—at least, in jurisdictions with medical marijuana statutes that protect lawful users against discrimination on that base.

But, it is unlikely that protections against discrimination would require employers to permit marijuana use by employees in safety-sensitive positions or where drug testing is required to maintain federal licensure, for example, where employers are required to drug test certain categories of employees under Department of Transportation regulations,[12] or where employees engage in high-risk tasks, such as providing healthcare or operating dangerous machinery.

Conclusion

Although medical marijuana remains illegal at the federal level, a growing number of jurisdictions have enacted medical marijuana statutes that prohibit employers from discriminating against employees who lawfully use medical marijuana and who, thus, would be unable to pass a drug test. It is increasingly likely that these statutes will also be used to prohibit discrimination against and require accommodations for employees who use medical marijuana. And the extent to which employers may be able to rely on federal law to claim exemption from compliance with state laws requiring accommodations for employees who are legal medical marijuana users is unclear. Thus, employers should proceed with care before taking adverse action against employees who are lawful medical marijuana users, particularly where the employee’s use occurs off-premises and outside of working hours. As in any disciplinary action, employers should carefully document the basis for their decision-making.

Also, to ensure that their anti-drug policies reach far and are free from ambiguity, we recommend that employers consider amending those policies to bar employees from using, dispensing, or being under the influence of marijuana and all other illegal drugs, whether they are illegal under federal, state, or local law.

Likewise, given the rapidly changing legal environment in this area, we recommend that employers periodically review their policies to ensure that they comply with all applicable laws, including any that prohibit discrimination against, or require reasonable accommodations for, medical marijuana users.

[1] Adopted, with publisher’s permission, from Morris, H. and Romero, A., Managing Medical Marijuana on Campus Amid Evolving State and Local Law, NACUANOTES, National Association of College and University Attorneys, Vol. 19, No. 1 (Nov. 17, 2020). All rights reserved.

[2] As of the date of this publication, thirty jurisdictions have effectively legalized medical marijuana use: Alaska, Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Maine, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, West Virginia. Eighteen have, as of the date of this publication, effectively legalized recreational marijuana use: Alaska, Arizona, California, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, Vermont, Washington. See Legal Medical Marijuana States and DC (last updated Nov. 10, 2020) for a summary of each jurisdiction’s law.

[3] See, e.g., Connecticut, Conn. Gen. Stat. Ann. §§ 21a-408 et seq.; Delaware, Del. Code Ann. tit. 16, §§ 4901A et seq.; Coats v. Dish Network, LLC, 350 P.3d 849, 853 (Colo. 2015) (private employer may discharge employee for testing positive for off-work medical marijuana use.); Slaughter v. John Elway Dodge S.W./AutoNation, 107 P.3d 1165, 1170 (Colo. App. 2005) (Colorado law “clearly establishes that it is acceptable for an employer to have a written drug policy and to terminate an employee as the result of a drug test showing the presence of marijuana in the employee’s system during working hours.”);.

[4] See 35 Pa. Stat. Ann. § 10231.2103; W. Va. Code Ann. § 16A-15-4.

[5] Thirteen states prohibit discrimination against employees solely on the basis of their status as registered medical marijuana users at the time of publication: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Oklahoma, Pennsylvania, Rhode Island, West Virginia. See Legal Medical Marijuana States and DC (last updated Nov. 10, 2020) for a summary of each state statute.

[6] See, e.g., Arkansas, Ark. Const. amend. XCVIII, §§ 3, 6; Arizona, Ariz. Rev. Stat. Ann. § 36-2813; Delaware, Del. Code Ann. tit. 16, § 4905A; Minnesota, Minn. Stat. Ann. § 152.32; Oklahoma, Okla. Stat. Ann. tit. 63, § 425; Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL 2321181 (R.I. Super. May 23, 2017).

[7] Barbuto v. Advantage Sales & Mktg., LLC, 78 N.E. 3d 37 (Mass. 2017); Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326 (D. Conn. 2017); Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL 2321181 (R.I. Super. May 23, 2017); Wild v. Carriage Funeral Holdings, Inc., 241 N.J. 285 (2020).

[8] Hudnell v. Thomas Jefferson U. Hosps., Inc., CV 20-01621, 2020 WL 5749924, at *6 (E.D. Pa. Sept. 25, 2020).

[9] Barbuto, 78 N.E. 3d at 41, 44, 46-47.

[10] See, e.g., Ark. Const. amend. XCVIII, §§ 3, 6; Ariz. Rev. Stat. Ann. § 36-2813; Del. Code Ann. tit. 16, § 4905A; Minn. Stat. Ann. § 152.32; Okla. Stat. Ann. tit. 63, § 425, 35; Pa. Stat. Ann. § 10231.2103; W. Va. Code Ann. § 16A-15-4.

[11] 41 U.S.C. §§ 701, 702.

[12] 49 C.F.R. Part 40.