Employers May Have to Accommodate Medical Marijuana Users Under Some State Laws

Q: Can my company refuse to hire or terminate an individual because the individual is a medical marijuana user?

A: Not necessarily.  While we have not seen any laws to date explicitly requiring employers to accommodate employees’ use of marijuana for medicinal purposes while at work, in some states at least, employers may not terminate employees for their use of medical marijuana outside of the workplace, even if it means that the employee tests positive in a drug screen.

According to the National Conference on State Legislatures, as of January 23, 2019, a total of 33 states and Washington, D.C.—including every state in the Mid-Atlantic—has a comprehensive medical marijuana program. At the federal level, marijuana still is considered to be an illegal drug under the Controlled Substances Act.  However, the U.S. Department of Justice’s current guidance on prosecution for marijuana-related offenses allows federal prosecutors to decide how and whether to prosecute marijuana-related crimes.

Many state laws governing the use of medical marijuana contain provisions addressing the intersection of medical marijuana and employment. While state governments have an interest in protecting users of medical marijuana from discrimination based on their status as a medical marijuana user, they also have recognized the duty of employers to protect co-workers and the general public by ensuring that medical marijuana users do not come to work or operate dangerous equipment while under the influence of marijuana.

The Pennsylvania Medical Marijuana Act, for example, provides that employers cannot discriminate or retaliate against an employee solely on the basis of the “employee’s status as an individual who is certified to use medical marijuana.” At the same time, employers are not required to accommodate the use of medical marijuana on employer property or premises.  Furthermore, Pennsylvania’s law permits employers to discipline or terminate an employee who is under the influence of medical marijuana in the workplace or who performs work while under the influence of medical marijuana “when the employee’s conduct falls below the standard of care normally accepted for that position.”

Given that state-sanctioned use of medical marijuana is relatively new, there are few cases interpreting state medical marijuana laws with regard to employment. The case Noffsinger v. SSC Niantic Operating Co., LLC, 338 F. Supp. 3d 78 (D. Conn. 2018), is a recent federal court decision interpreting Connecticut’s medical marijuana law.  Connecticut’s law contains an “anti-discrimination provision” that bars an employer from refusing to hire a person or from “discharging, penalizing or threatening an employee” solely because of the person’s status as a “qualifying medical marijuana patient under state law.” The statute also provides, however, that an employer could refuse to hire a medical marijuana user if “required by federal law or required to obtain funding.”

In Noffsinger, the plaintiff accepted a job offer (contingent on passing a drug test) from the defendant employer.  Prior to taking the drug test, the plaintiff informed the employer that she was an approved user of medical marijuana under state law, and that she utilized medical marijuana to treat her post-traumatic stress disorder.  When plaintiff’s drug test came back positive for marijuana, the employer rescinded the job offer and refused to hire the plaintiff.  In doing so, the employer acted on the basis that it maintained a “zero tolerance” drug policy and that marijuana is illegal under federal law.  The plaintiff sued under the medical marijuana law’s non-discrimination provision.

The court granted summary judgment to the plaintiff, finding that the employer violated Connecticut’s medical marijuana law. The court paid little heed to defendant’s argument that it was required to reject plaintiff for employment because the federal Drug Free Workplace Act (DFWA) barred it from hiring plaintiff.  In coming to this conclusion, the court wrote that the DFWA neither required drug testing nor prohibited employers from employing someone who uses medical marijuana outside the workplace.  The court also stated that the DFWA did not require a “zero tolerance” drug policy.  The court then concluded that the Connecticut statute protects a qualified user’s use of medical marijuana outside work hours.

We will surely see an uptick in medical marijuana related litigation as more jurisdictions adopt medical marijuana laws, and as more employers make decisions regarding the employment of medical marijuana users. If one of your employees is a user of medical marijuana and you have concerns about your company’s obligations and/or responsibilities with regard to such use, contact any member of the Pepper Hamilton Labor & Employment team.

– Lee E. Tankle

Zero Tolerance Drug Testing Policies in the Age of Medical Marijuana

Q:  My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?

A.  The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers.  By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.

In New York, the law goes even further, providing that certified patients shall not be subjected to “disciplinary action by a business” for exercising their rights to use medical marijuana. A patient with a prescription for medical marijuana in New York State is considered to have a “disability” under the New York State Human Rights Law.  This means that New York employers must provide reasonable accommodations to employees or prospective employees who are certified to use marijuana for medical reasons.

The Massachusetts Supreme Judicial Court recently ruled that employers may be held liable for disability discrimination under Massachusetts state law if they fire an individual for using medical marijuana. In that case, the employee was fired after her first day of work for failing a drug test, despite the fact that the employee had informed the company that her doctor has prescribed marijuana as a way to manage her Crohn’s disease.  The court held that using medical marijuana is as lawful as using any other prescription medicine, despite the fact that it is illegal under federal law.  Further, the court stated that it would be a reasonable accommodation for an employer to allow its employees to use medically-prescribed marijuana away from the employer’s place of business unless the employer can show undue hardship.

It is quite possible that the growing number of states that have enacted medical marijuana legislation will follow the lead of the New York legislature and the Massachusetts court in adding medical marijuana use – at least outside of the workplace – to the list of accommodations that are considered to be reasonable. That means that employers will not be able to rely on positive drug test results for marijuana for employees working in non-safety-related positions without engaging in the interactive process with the employee or applicant.  The employer will have to analyze whether the employee’s use of marijuana outside of working hours will prevent the employee from performing the essential functions of his or her job.  Moreover, the employer will want to monitor the employee to ensure that the accommodation does not impact the employee’s job performance.

– Tracey E. Diamond