The jury is still out on medical marijuana and the workplace

Here's the good news: The Americans with Disabilities Act does not require employers to accommodate their employees who have medical marijuana cards -- even in states where it is legal. Here's the bad news: Employers may be exposed under state law.

By Nancy Grover

Many gray areas surround the use of medical marijuana. With more than a dozen states and the District of Columbia having some sort of laws on the books legalizing marijuana for medicinal purposes, employers are increasingly asking about their rights, roles, and responsibilities.

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A recent LinkedIn post on the WorkCompAnalysis group began with an employer seeking input about whether it's OK to refuse to hire someone who presents a medical marijuana card after failing a preemployment drug test. What ensued was a discussion that raised as many questions as it answered.

The experts say it's an evolving issue, and many legitimate questions have yet to be decided by the courts. They offer some definitive comments, however, as well as advice for employers to protect themselves.

Marijuana and the ADA. "Nothing in the ADA that has been interpreted to date requires an employer to allow somebody to use marijuana," said Frank Alvarez, a partner in the White Plains, N.Y., office of Jackson Lewis LLP, and one of the nation's foremost legal experts on the ADA. "People who are currently engaged in the illegal use of drugs are excluded from the definition of disability under the ADA. The use of marijuana remains illegal under federal law; so while some states have passed statutes permitting that use ... the states don't have the authority to dictate what use of drugs is lawful under federal law."

But before they breathe a sigh of relief, employers in states that allow medical marijuana might want to take a close look at their state law. "An employer can win an ADA case and potentially lose a state law case," Alvarez said.

"When federal law doesn't go far enough in the opinion of many to protect the rights of employees, states respond by providing greater protections than federal law," he said. "So we have to watch carefully how it develops at the state level. You could potentially have an increased exposure under state law."

Employers of workers in so-called safety sensitive positions are protected by various federal and state laws and regulations even in states where medical marijuana is legal. Airline pilots, police officers, and commercial drivers, for example, are prohibited from working while under the influence of alcohol or illegal drugs, which includes marijuana under federal law.

Where the issue gets fuzzy is other types of jobs such as clerical. A marketing assistant who gets injured at work, fails a drug test, and presents a medical marijuana card from a physician in a state where it is legal may be entitled to workers' comp benefits -- unless the state has a law saying otherwise.

"There are many states that have presumptions of causation when someone fails a postinjury drug test. How does the issue of medical marijuana impact this?" said Mark Walls, vice president of claims at Safety National and creator of the WorkCompAnalysis LinkedIn group. "There was a Michigan case where the person was fired for failing a postinjury drug test due to medical marijuana. The courts upheld the firing because it was consistent with the employer's drug-free policy."

Medical marijuana and the states. State courts generally have been favorable to employers. A 2008 decision from the California Supreme Court reiterated that no state law can completely legalize marijuana for medical purposes because the drug remains illegal under federal law. The court denied an employee's allegation that the employer had violated that state's Fair Employment and Housing Act by terminating him because of, and failing to make a reasonable accommodation for, his disability.

The following year, the Montana Supreme Court ruled in favor of an employer, saying the state's Medical Marijuana Act clearly provides that an employer is not required to accommodate an employee's use of medical marijuana.

"What both examples dealt with is a state statute that the user of the drug was allowed to use and was going after his employer for violation of state-specific acts," said attorney Joshua Brown, an associate at Thomas Pollart & Miller in Colorado. "The acts were not the same, but a lot of states have these kind of, what I call, lawful activity acts."

Brown made the analogy of legal medical marijuana and having a Facebook page. "Your employer can't take action against you for having one," he said. "But if you take a few steps further and bad-mouth the company [on the Facebook page], they can say it's not really lawful activity."

Read more at the WorkersComp Forum homepage.

May 14, 2012

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