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By JOSHUA CLIFTON, a Chicago-based writer who covers workers' comp and disability issues

Drug-testing programs have long been championed by employers as a way to reduce workers' compensation claims, minimize liability and weed out potential substance abusers from the workplace. However, a movement in recent years by several states to permit the use of medical marijuana has blurred the lines of legality and left employers dazed and confused about what protections they still have in their fight to maintain a drug-free work environment. If recent court decisions are any indication, employers still hold all of the cards.

In the case--Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries of the State of Oregon--the court was asked to determine whether an employer should be held liable for an unlawful employment practice if it chooses not to hire a worker who discloses that he would not pass a drug test because of his medical marijuana use.

BURNT BY ZERO TOLERANCE

In 2003, Emerald Steel Fabricators told Anthony Scevers, a temporary steel-press operator, that he would need to pass a drug test if he were hired on full-time. Scevers, however, could not comply because he used medical marijuana to treat his anxiety, nausea and vomiting pursuant to the Oregon Medical Marijuana Act.

When the company terminated his employment, Scevers filed a charge with the Oregon Bureau of Labor and Industries, alleging that Emerald Steel had discriminated against him and failed to accommodate his disability. While lower courts held in favor of the worker, the state's High Court sided differently, saying that employers are not statutorily required to accommodate medical marijuana use and are free to enforce zero-tolerance drug policies and testing programs.

Employers, many of whom had filed amicus briefs in the case, hailed the ruling as a significant victory. Karen Harned, executive director of the National Federal of Independent Small Business Legal Center, said that the Oregon Medical Marijuana Act should not stand as a statutory trump card over every other statute and common law duty, although the state law permits registered patients to use marijuana free of the threat of criminal prosecution.

"Employers have a duty to their employees, customers and the general public to provide a safe and drug-free workplace," she said. "Oregon employers should not be saddled with a competing duty to accommodate patients who use marijuana pursuant to the Oregon Medical Marijuana Act."

GATEWAY LAW

For Dan Harmon, executive vice president and general counsel of the Portland, Ore.-based Hoffman Corp., one of the largest general contractors and construction managers in the United States, the ruling capped a decade-long crusade to clarify the state's medical marijuana law. As chairman of Associated Oregon Industries, he said that employers had serious health, safety and liability concerns when it came to the issue, and that if forced to accommodate medical marijuana users in the workplace, it would undermine established drug and alcohol testing programs.

"If you go back to the original ballot measure, people at that time said it (medical marijuana) would be closely regulated and that employers would not be obligated to accommodate its usage in the workplace," he said. "However, the ink wasn't even dry on the law before people began coming forward saying that they thought it was discriminatory."

Harmon said the issue has only escalated in recent years. In the beginning, he said, only a small amount of seriously ill individuals were approved for medical marijuana cards--somewhere in the neighborhood of 500 to 1,500 people. Harmon said today there are more than 32,000 individuals who have medical marijuana cards, and that number is increasing by an average of 9,000 users a year. On top of that, the state increased the amount of medical marijuana users can have in their possession from three ounces of cannabis to 24 ounces.

"Clearly, this is not an issue that is going away," he said.

FEDERAL-STATE CONFUSION

Since California kicked off the trend in 1996, 13 other states have legalized medical marijuana. Although the Obama administration announced last year that it would ease prosecution guidelines for medical marijuana, cannabis remains an illegal substance under federal law. This seemingly ongoing contradiction has continued to fuel the fire over debates of employer rights and responsibilities.

At a public forum hosted by the Occupational Safety and Health Administration (OSHA) in February, stakeholders raised the issue once again and urged the government to provide guidance. Chris Patton, president of the American Society of Safety Engineers, said the group's members are increasingly being asked by employers to find ways to address the implications of legalized marijuana.

"When there are conflicting federal and state laws on the issue, OSHA may be the most appropriate authority to address the risks legalization poses to a safe workplace," he said.

Devjani Mishra, a partner practicing labor and employment law in the New York office of Seyfarth Shaw LLP, said that, despite the confusion, the Oregon decision shouldn't come as a surprise, because courts in California and Montana have reached similar verdicts in recent years.

"All courts at the high level have come down in favor of employers," she said. "They have indicated that the statutes really serve to define the relationship between a state and its people, and are not designed to be used to regulate the relationship between employers and employees."

Because marijuana is still classified as an illegal drug under federal law, Mishra said, you won't find a case filed under the Americans With Disabilities Act.

"No court will say that an employer has to accommodate for something that is illegal," she said. "By in large, if employers can show that their drug testing is valid, they will not be forced to waive that requirement or impose a lesser standard."

This doesn't mean that employers can't accommodate for medical marijuana use. It ultimately comes down to management's decision, according to Mishra.

"Given the essential functions of the job, it is up to the judgment of management about how they want to accommodate this activity," she said. "This can be difficult because many jobs require an attention to detail, like operating heavy equipment or machinery. You have to look at the individual job and person, and if you decide to accommodate these users, determine how you will do it without creating liability. This may include transferring the individual to another job or scaling back certain tasks."

EMPLOYER EMPOWERMENT

Employers who operate in states that permit the use of medical marijuana should take steps to ensure that their policies on the issue are clear to employees and potential hires. Since Oregon's law was enacted, Harmon said, he has encouraged employers to put a clause in their employee handbooks stipulating that, if an employee fails a drug test, the company will not accept medical marijuana cards as a valid excuse.

Mishra agreed, saying that management's decision on whether or not to accommodate should be a workplace and safety issue, not a political one.

"Based on case law, employers are not going to be required to stop testing for marijuana," she said. "And if employers make that decision to accommodate, they need to go about it in a very concrete way. Look at the job descriptions and make sure they accurately define the essential functions of the job. If you are assessing whether a person can perform certain tasks or not, you want to make sure that you can have a conversation about how medical marijuana will affect very specific elements of the job.

In the end, Mishra said, it still comes down to an employer's judgment.

"If you don't want to accommodate, there is legal safe harbor out there to do that," she said.

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April 20, 2010

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