Hazy Future: Reconciling Federal and State Laws on Marijuana Use

Author: Beth P. Zoller, XpertHR Legal Editor

Conflicting messages about state and federal marijuana laws have left employers wondering whether they may regulate medical marijuana use during working and non-working hours as well as the ability of employers to drug test employees and applicants. states. This is important because marijuana use can decrease employee productivity and efficiency as well as lead to employee tardiness and absence and have a significant impact on employee safety and health especially if employees are driving or operating dangerous machines and equipment. Employers need to be aware of the state of the law on the federal and state level as well as proposed legislation and how this can impact their workplace policies and procedures as well as how to implement a drug-free workplace policy and discipline employees for marijuana use.

Medical Use of Marijuana

Approximately 30 states and the District of Columbia permit marijuana use for medical purposes and In states that permit patients to use marijuana for medical purposes, patients usually need to provide a doctor's written authorization in order to obtain a prescription for medical marijuana, and the state may only allow marijuana use for particular diseases or disabilities. However, most state laws permit employers to discipline employees for testing positive for drugs, even if they are permitted to use marijuana for medical purposes.

As such, courts have generally held that employers may refuse to hire, fire and discipline employees who test positive for marijuana use even if used for medical purposes. Medical marijuana use during work hours also has not been sanctioned. See Cassias v. Wal-Mart Stores Inc., +2012 U.S. App. LEXIS 19634 (6th Cir. 2012); James v. City of Costa Mesa, +700 F.3d 394 (9th Cir. 2012); Ross v. RagingWire Telecommunications Inc., +174 P.3d 200 (Cal. 2008). Even if the employee has a prescription, the ADA does not prohibit employers from disciplining or terminating an employee for medical marijuana use. 42 U.S.C. § 1201 et seq.

Similarly, in Swaw v. Safeway, +2015 U.S. Dist. LEXIS 159761, a federal court in Seattle ruled that employers are not required to accommodate the use of medical marijuana if they have a drug-free workplace, even if the marijuana is being used off-site to treat an employee's disability and despite the fact that Washington permits both medical marijuana and recreational marijuana use. The court maintained that despite Washington state law, marijuana remained a Schedule 1 controlled substance under federal law and its use was illegal. Alcohol use and marijuana use did not have to be treated in a similar manner because alcohol use is legal under federal law.

Also, in Garcia v. Tractor Supply Co., +2016 U.S. Dist. LEXIS 3494, a federal district court in New Mexico ruled that an employer had no obligation to accommodate an employee's medical marijuana use under New Mexico's medical marijuana law or New Mexico's Human Rights Act.

On the other hand, even though it runs contrary to federal law some states such as Arizona, Connecticut, Delaware, Maine, and Rhode Island require employers to accommodate medical marijuana use despite the fact that its use is illegal under federal law and the Controlled Substances Act.

Recreational Use and Decriminalization

Approximately 9 states including Alaska, Colorado, Oregon and Washington as well as the District of Columbia have legalized marijuana for recreational use in small amounts and removed criminal penalties for use or possession thereof to some extent.

Nonetheless, Colorado's Amendment 64 specifically advises that the law is not intended to require an employer to permit or accommodate the use of marijuana in the workplace or to affect the ability of employers to implement policies restricting employees from using marijuana." Similarly, the Amendment 64 Task Force has stated that it was permissible for employers to terminate employees both on-duty as well as off-duty and off-premises marijuana use.

In Coats v, Dish Network, LLC, +2015 CO 44 (2015), the Colorado Supreme Court ruled that a medical marijuana user who was terminated after failing a drug test cannot get his job back despite the fact that Colorado permits both medical marijuana and recreational marijuana use and despite the fact that Colorado law protects employees from being discharged for legal outside-of-work activities. The court noted that although Colorado permits medical marijuana use, in order to gain legal protection, an activity must be lawful under federal as well as state law.

Employers are permitted to restrict marijuana use and possession by employees whether on-duty or off-duty and whether for medical or recreational use. This mirrors two Colorado courts that previously determined in Bonior v. Industrial Claim Appeals Office +262 P.3d 970 (Colo. App. 2011) and Hall v. Direct Checks Unlimited, No. 11CV1302 (El Paso County Dist. Ct. 2011) that using medical marijuana is not lawful off-duty conduct and employees are not protected from termination for engaging in lawful off-duty use. This is a growing trend that employers should be on the lookout for as this complicates matters with respect to marijuana use by employees and applicants.

Employers operating in states which permit recreational use of marijuana, as well as those that permit medical marijuana, should be particularly careful as marijuana may not only be smoked but also can be ingested via cannabis-infused food such as cookies, brownies and candy. . The intoxicating effects of edible marijuana last much longer and can therefore be even more dangerous than when the drug is smoked.

Federal Approach

Under the Controlled Substances Act (CSA), marijuana is classified as a Schedule I drug and is illegal under federal law. Because of this, the federal government has maintained a traditional hard-line stance against marijuana use. It has continued to focus on it as a serious drug despite state laws that have attempted to legalize it for medical or recreational purposes. For example, in response to the passage of state laws legalizing marijuana for medical purposes, the Department of Justice (DOJ) responded with a memo in June 2011 stating that it remained committed to enforcing the Controlled Substances Act in all States and reiterating that marijuana was a dangerous and illegal drug.

The DOJ pronounced that persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law and maintained that state laws or local ordinances are not a defense to civil or criminal enforcement of federal law or the CSA.

Department of Transportation

The Department of Transportation (DOT) continues to take the position that marijuana use is unacceptable especially for those employed in safety sensitive positions. In November 2012, after the passage of new state laws legalizing both recreational and medical use of marijuana, the DOT issued a notice stating that the state laws permitting medical or recreational marijuana use have no bearing on the DOT's position that it remains unacceptable for any safety sensitive employee such as a pilot, truck driver, train engineer, ship captain, school bus driver etc subject to drug testing under DOT regulations to use marijuana.

The DOT reiterated that marijuana would remain a drug listed on Schedule I of the Controlled Substances Act and that the DOT will not condone an employee who fails a drug test in a state that has chosen to either permit medical or recreational use of marijuana and that DOT regulations do not authorize medical marijuana under state law to be a valid explanation for a transpiration employee's positive drug test result.

The DOT also reinforced that it will continue to test employees in safety sensitive positions as well as following an accident, randomly and when there is reasonable suspicion of employee drug use. Employees and applicants in safety sensitive positions will not be allowed to rely on the fact that their state permits medical or recreational use of marijuana as an explanation for a positive drug test.

Federal Courts

The federal courts continue to take the position that marijuana remains a dangerous drug that is clearly illegal under the CSA. In Americans for Safe Access v. Drug Enforcement Agency, +2013 U.S. App. LEXIS 1407, (D.C. Cir. 2013), the D.C. Circuit Court of Appeals held that the DEA's denial of a petition to reschedule marijuana to a Schedule III, IV or V drug which may be obtained for personal medical use by prescription as opposed to a Schedule I drug which incites a high potential for abuse and no currently acceptable medical use in treatment in the US was not arbitrary and capricious. In doing so, the court agreed with the DEA's view that marijuana still lacks a currently acceptable medical use in the US and that from a federal perspective marijuana should remain a controlled substance that cannot be legally obtained for medical use or otherwise.

Advice for Employers

Given the tremendous conflict at this moment between state and federal laws and with new information becoming available almost every day, employers should take the following steps to address marijuana use by employees and applicants:

  • Continue to implement and enforce drug-free workplace policies and clearly state the employer's position on marijuana use. Even in states in which marijuana use is legal for medical or recreational purposes, courts have recognized that employers may enforce drug-free workplace policies and lawfully prohibit employees from using marijuana during working hours and while on the employer's premises, much the same as alcohol use. An employer may want to refer to the Controlled Substances Act under federal law which maintains that marijuana remains a Schedule I drug and any positive test will lead to termination or discipline.
  • Ensure that all employer policies clearly prohibit use of all illegal drugs that occur during working time or while in the workplace.
  • Review all new hire paperwork including applications and offer letters to make sure that such documents are clear regarding the employer's position on marijuana use.
  • Maintain drug testing programs for employees and applicants especially when individuals are employed safety-sensitive positions or positions of public safety that require drug testing.
  • Make sure that all employees and applicants are advised of the employer's policies and expectations with regard to drug testing and ensure that the drug testing policy is uniformly enforced. It is best practice to notify applicants of the employer's drug testing policy with regard to medical marijuana use in writing during the application process.
  • Continue to discipline employees for being under the influence of marijuana, including medical marijuana during working hours or in the workplace.
  • Be cautious when making any adverse employment decisions with regard to employees who use medical marijuana and do not discriminate against individuals with a disability. Employers in should be particularly careful if they operate in a state that requires employers to accommodate medical marijuana use.
  • Enforce policies consistently and treat all employees equally when it comes to marijuana use.
  • Consult local counsel because the law differs significantly from state and to state and continues to develop.

Future Developments

Because this is a rapidly developing area, employers should be sure to stay on top of developments on both the federal and state level.

Additional Resources

Marijuana Laws by State

Employee Management > Employee Privacy > Drug and Alcohol Testing

Recruiting and Hiring > Preemployment Screening and Testing > Drug and Alcohol Testing Programs

Employee Management > Disabilities (ADA) > Drug Testing Is Not a Medical Examination

Employee Management > Employee Discipline

Employee Management > Employee Handbooks - Work Rules - Employee Conduct > Work Rules Concerning Smoking, Alcohol and Drug Use

Risk Management - Health, Safety, Security > Employee Health

Risk Management Overview

Workers' Compensation

Workplace Security

Drug-Free Workplace Policy

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How to Conduct a Drug Test

Drug and Alcohol Testing Policy

Acknowledgement and Consent Form for Drug and Alcohol Testing Policy