Many employers choose to maintain a drug-free workplace in the interests of promoting employee safety, health and productivity. However, notwithstanding the fact that marijuana is prohibited under federal law, thirty-three states and Washington D.C. now permit some form of marijuana use, and thus employers must consider whether a drug-free workplace policy contravenes any of these laws. In this article, we offer some perspective on issues for employers to consider, including: background on what marijuana is, a summary of the legal landscape regarding whether and when an employer may engage in testing for marijuana use, and some suggestions concerning policies that employers may adopt to promote a drug-free workplace while respecting employees’ new rights under medical or recreational marijuana laws.
Cannabis, Marijuana or Hemp?
In considering how to address the effect of marijuana in the workplace, employers must be able to distinguish among the various cannabis-related products, including marijuana, that exist in the marketplace. Marijuana is a term for a drug, derived from parts of the flowering plant called “cannabis,” that contains more than 0.3% of the compound delta-9-tetrahydrocannabinol (“THC”) on a dry weight basis. This drug is at times referred to as “cannabis.” The THC in marijuana may cause affected individuals to experience relaxation, euphoria, anxiety, distrust, and/or an altered sense of time. Marijuana may also impair concentration, reduce coordination and cause short-term memory loss. By contrast, hemp is a term for cannabis that contains 0.3% or less THC on a dry weight basis. CBD, which stands for cannabidiol, is another compound found in the cannabis plant, which means CBD can be derived from both marijuana and hemp. Unlike THC, CBD does not produce psychoactive effects.1
The Controlled Substances Act, Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (“CSA”), states in part that individuals may not “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense. . . [or] create, distribute, or dispense, or possess with intent to distribute or dispense” marijuana. See 21 U.S.C. § 812, 841 et seq. Marijuana-derived CBD is governed by the CSA and other marijuana laws. Section 12619 of the Agriculture Improvement Act of 2018 removes hemp-derived products, including hemp-derived CBD, from coverage under the Controlled Substances Act, provides that the U.S. Department of Agriculture will now regulate hemp, and removes hemp as a controlled substance under the jurisdiction of the U.S. Department of Justice.
The efficacy of marijuana and THC for medicinal purposes and the short- and long-term effects of marijuana consumption remain a controversial issue, although elements in marijuana have been used in Food and Drug Administration approved medications.2 Questions also remain regarding how the amount of THC in the blood relates to an individual’s incapacity or impairment. The amount of THC in the blood may or may not be an indicator of incapacity in the same way as the blood-alcohol levels with which people are familiar.3 This fact can create a complicating issue for employers who test for marijuana consumption, because THC can be observed in the body days after consumption.4
Federal Drug Testing Law
The Americans with Disabilities Act (“ADA”) generally permits, but does not require, employers to test employees to determine whether they use illegal drugs, see 42 U.S.C. § 12114(d)(1), including marijuana, see 42 U.S.C. § 12111(6). However, employers in certain industries, for instance those employing commercial drivers or aviation personnel, must test employees for possible use of specified substances including marijuana. See 49 C.F.R. 382.301-311; 14 C.F.R. 120.3, et seq. The Drug-free Workplace Act (“DFWA”) mandates that federal contractors establish a drug-free workplace and so prohibit marijuana intoxication at work. See 41 U.S.C. § 8102.
State Laws on Marijuana
Several courts have concluded that an employer may take action against an employee who uses marijuana in a manner that does not contravene applicable state laws. In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (Or. 2010), the Oregon Supreme Court held that an employer acted lawfully when it refused to hire a temporary employee on a permanent basis after the employee explained that he would fail a drug test because he used medical marijuana outside work. See id. at 520-21, 524-36. The court reasoned that Oregon’s disability-discrimination law does not apply to applicants or employees currently engaged in the illegal use of drugs if the employer takes action based on that conduct and marijuana use is an illegal use of drugs because marijuana is illegal under the CSA. Accord Coats v. Dish Network, LLC, 350 P.3d 849, 850-51 (Colo. 2015).
In some states, state disability-discrimination law requires employers not to take action against employees or applicants for medical marijuana use or intoxication where the marijuana treats a disability or its symptoms. In New York, certified medical marijuana users are deemed to have a disability. See N.Y. Pub. Health Law § 3369(2). In order to receive a “patient certification” under this law, an individual must, among other elements, have “a serious condition, which shall be specified in the patient’s health care record” and in a practitioner’s professional opinion and review of past treatments, “the patient is likely to receive therapeutic or palliative benefit from the primary or adjunctive treatment with medical use of marihuana for the serious condition.” Id. at § 3361(1). In Wild v. Carriage Funeral Holdings, Inc., 2020 WL 1144882 (N.J. Mar. 10, 2020), the Supreme Court of New Jersey concluded that an employee had a cause of action for disability discrimination where an employer discharged him for testing positive for marijuana because he used medical marijuana for his cancer outside work. See id. at *3; Wild v. Carriage Funeral Holdings, Inc., 205 A.3d 1144, 1148 (N.J. App. Div. 2019). Accord Barbuto v. Advantage Sales & Marketing, LLC, 477 Mass. 456, 462-66 (2017).
One unresolved question is whether permitting the use of or intoxication from medical marijuana in the workplace is an unreasonable accommodation, because it would pose unacceptable safety risks to the employee, other employees, customers and/or the public; would impair the employee’s ability to perform his or her job, or would preclude the employer from meeting statutory or other obligations. In New York and New Jersey, statutes permit employers to prohibit, respectively, medical marijuana impairment and medical marijuana use at work. See N.Y. Pub. Health Law § 3369(2); Wild, 2020 WL 1144882, at *3. In Barbuto, the court explicitly did not decide whether an employer had to permit on-site medical marijuana use if it would create unacceptable safety risks or “would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform business.” Id. at 467.
Several states prohibit employers from taking action against an employee based on that employee’s status as a medical marijuana user. See, e.g., Ariz. Rev. Stat. § 36-2813(B)(2). These states generally permit employers to forbid marijuana intoxication at work, see, e.g., Ariz. Rev. Stat. § 36-2813(B)(2), and several states have exceptions for actions taken against employees engaged in safety-sensitive positions, involving such tasks as operating motor vehicles, working public utilities, handling machinery, dispensing pharmaceuticals, and caring for patients or children, see, e.g., Okla. Stat. Ann. tit. 63, § 427.8(2)(c).
Arkansas and Illinois explicitly permit employers to maintain drug-testing policies and to take actions against medical marijuana users pursuant to those policies. See Ark. Const. amend. XCVIII, § 3(B)(i); 410 Ill. Comp. Stat. 130/50(b).
In Arizona and Oklahoma, employers may not take action against medical marijuana users for testing positive for marijuana unless a user possessed, consumed or was under the influence of marijuana at work. See A.R.S. § 36-2813(b)(2); Okla. Stat. Ann. tit. 63, § 427.8(H)(2)(b).
There are still many questions which have not been answered by judicial decisions. One question is whether the CSA and the DFWA preempt such laws. Some courts have concluded that the CSA does not preempt them because the CSA does not prohibit employing illegal drug users or otherwise regulate employment. See Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326, 335-36 (D. Conn. 2017); Chance v. Kraft Heinz Foods Co., 2018 WL 6655670, at *3-4 (Del. Super. Ct. Dec. 17, 2018). In Noffsinger, 338 F.Supp.3d 78 (D. Conn. 2018) (“Noffsinger II”), the court held that the DFWA does not preempt state law because the DFWA does not require drug testing or prohibit employing people who use illegal drugs outside work. See id. at 84.
Another question is what discrimination based on a person’s status as a medical marijuana user means. In Noffsinger II, the court rejected the employer’s argument that Connecticut prohibits discrimination based on status as a medical marijuana user and not based on a positive test for marijuana, because such an interpretation would nullify the statute’s protections. See id. at 84-85.
Employers should consult counsel about drug-free workplace and drug testing policies. Although all employers are permitted to establish and maintain drug-free workplace policies which prohibit being under the influence of illegal drugs, including marijuana, in the workplace, state law differs widely in important areas related to marijuana in the workplace.
Employers in the majority of states, including Oregon, Colorado and California, can require drug tests and take action against employees who test positive for marijuana. In some states, however, there is legal risk for employers that refuse to hire, discipline or discharge medical marijuana users for testing positive for marijuana. Employers might argue that the CSA or the DFWA preempts state law, but to date such arguments have not been effective in courts addressing this issue. If an employee or an applicant tests positive for marijuana, employers should consider requesting documentation of medical marijuana use. If documentation shows the individual is a medical marijuana user, the employer should consider not taking action based on the test alone. Supervisors should look for signs of marijuana intoxication, including red eyes, decreased muscle coordination, delayed reaction times and increased appetite or anxiety. Supervisors should document such symptoms and employers should cite them as evidence of marijuana impairment at work if the employer takes disciplinary action against a medical marijuana user.
Additionally, in some states, if an employee requests permission to use medical marijuana as an accommodation, because the marijuana treats a disability or its symptoms, there is legal risk if the employer does not handle the request as any other request for a disability accommodation. An employer might argue that permitting marijuana intoxication in the workplace is an unreasonable accommodation but whether such an argument succeeds depends on such factors as whether the employee’s marijuana use creates a threat to the employee or others, impairs the employee’s ability to perform his or her job, or prevents the employer from satisfying statutory or contractual obligations.
Reprinted with permission from the August 4, 2020 edition of the NEW YORK LAW JOURNAL © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - firstname.lastname@example.org.
1 See Dominique Astorino, What’s the Difference Between CBD, THC, Cannabis, Marijuana, and Hemp?, Shape, https://www.shape.com/lifestyle/mind-and-body/difference-between-cbd-thc-marijuana-hemp-cannabis (last accessed Mar. 10, 2020); Rudy Sanchez, Marijuana vs. Hemp: What’s the Difference?, Chicago Tribune, https://www.chicagotribune.com/marijuana/sns-tft-whats-the-difference-marijuana-hemp-20190815-nljrmyx7hvdedhca4vhwqj4a3e-story.html (last accessed Mar. 10, 2020).
2 See Marijuana, National Institute on Drug Abuse, https://www.drugabuse.gov/publications/research-reports/marijuana/marijuana-safe-effective-medicine (last accessed Mar. 11, 2020).
3 See, e.g., Richard Compton, National Highway Traffic Safety Administration, Marijuana Impaired Driving: A Report to Congress at 6, 7 (July 2017); Kristin Wong, Joanne E. Brady, Guohua Li, Establishing Legal Limits for Driving Under the Influence of Marijuana, Injury Epidemiology at 7-8 (2014) (“Establishing Legal Limits”).
4 See Establishing Legal Limits at 5-6.