Brandon Coats leaves the courtroom at the end of a court hearing on Sept. 30 in Denver. The Colorado Supreme Court listens to arguments in the case of Brandon Coats, a quadriplegic medical marijuana patient who was fired from his job at Dish Network after testing positive for marijuana. A written decision by the court will be issued at a later date. (Kathryn Scott Osler, The Denver Post)
Dec 3, 2014
Forbes - There are now 24 jurisdictions with laws that legalize use of marijuana for medical purposes. Five of those jurisdictions—Colorado, Washington, Oregon, Alaska, and the District of Columbia—have gone so far as to legalize the drug for recreational use, with similar legislation pending or under consideration in a number of other states. Because state statutes in this area are generally very new, most have not yet had opportunity for judicial interpretation. This means there is little (if any) guidance—even generally—about what the statutes mean, much less any clear direction for employers that are trying to grapple with whether—and, if so, how—their employment policies and practices should be modified to take into account the new statutes. Compounding the uncertainty for employers is that federal law continues to prohibit marijuana use, distribution, and possession for any reason.
Set forth below is the most definitive guidance that currently can be gleaned from the text of the state laws and the few court decisions that have been rendered in this area. We will continue to update you with new developments.
Introduction—Common Features of the State Marijuana Statutes:
Although state statutes vary in their precise terminology and scope, they generally share certain common features. For example, most states allow access to medical marijuana only through a registration or ID card. Although the rules vary by jurisdiction, these cards generally permit a patient to seek physician authorization and then obtain, use, and possibly grow marijuana for medicinal purposes. Cards are generally issued by a branch of state government, require payment of a fee and are valid for one year. In addition, some states, although authorizing termination or discipline for marijuana use or intoxication, prohibit discrimination against individuals on the basis of their being medical marijuana registration cardholders.
Vexing Questions for Multi-State Employers:
May Employers Discharge An Employee For A Positive Marijuana Drug Test?
Perhaps the most pressing question for employers is whether they may lawfully impose discipline (including termination) on an employee who tests positive for marijuana. The answer, generally, is yes.
Most state statutes expressly carve out exemptions for employers that prohibit any use of marijuana in the workplace, or on the employers’ premises, as well as any on-the-job intoxication. A few jurisdictions have also produced case law supporting an employer’s right to terminate employment when an employee tests positive for marijuana.
But whether an employer can discipline an employee for off-hours and off-site use or influence, when it is pursuant to a valid prescription (in medical marijuana states), or for off-hours and off-site recreational use (in recreational marijuana states), remain questions with no clear answers. In some states—such as Arizona, Delaware, and Minnesota—statutes expressly prohibit employers from firing an employee for a positive marijuana drug test if that employee holds a valid marijuana card. By contrast, in other states—such as California, Montana, Oregon, and Washington—existing statutes or case law direct that employers may lawfully implement zero-tolerance drug use policies, regardless of the legality of marijuana use under state law. That said, as marijuana laws evolve and expand, these laws may be reconsidered. The most recent state supreme court rulings on the topic in California and Oregon, for example, were back in 2008 (CA) and 2010 (OR).
Must Employers Permit Positive Drug Test Results As A Disability Accommodation?
Another difficult question for employers involves off-site, non-work hour, legally prescribed marijuana use by employees who qualify as “disabled”
under state law and/or the federal Americans with Disabilities Act (ADA), when that off-site, non-work hour marijuana use results in a positive drug test. Although no state laws provide protection for disabled employees who appear for work intoxicated by, or “under the influence” of illegal drugs, regular marijuana use can result in a positive drug test after an employee is no longer “under the influence” of the drug.
The ADA and its state cognates require employers to provide reasonable accommodation for qualified employees with a disability. Under some state laws, it is also illegal to discipline an employee for marijuana used during non-work hours pursuant to a valid prescription. It is possible that courts will apply these two sets of laws in tandem to require employers – under state law – to revise zero tolerance drug policies in order to accommodate employees who wish to treat their medical conditions with marijuana during off-work hours.
A Further Wrinkle For Federal Contractors
: If you are a federal contractor, your marijuana policies are governed, first and foremost, by the federal Drug Free Workplace Act. This Act (the DFW Act) requires entities that contract with the federal government to enforce zero-tolerance policies regarding use of illegal drugs in the workplace. Because federal contractors are subject to federal law pursuant to the terms of their contracts, and because marijuana is still an illegal drug under federal law,
no state law may require a federal contractor to accommodate marijuana use. Recognizing this conflict, a number of state statutes—such as those in Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and New York—expressly exempt federal contractors from any duty to accommodate employees’ marijuana use. But the DFW Act does not regulate drug use outside of work hours, nor does it mandate drug testing, so the interplay between the DFW Act and state legalization laws still remains uncertain.
Key Colorado Case To Watch:
Potentially shedding light and promoting uniformity for employers on the above questions is a case pending before the Colorado Supreme Court (the CSC): Coats v. Dish Network, LLC. Up for decision is whether the employer acted lawfully when it terminated the employment of a quadriplegic who suffered from debilitating muscle spasms and possessed a valid medical marijuana prescription. The termination decision was based on the employee’s positive test for marijuana use even though he was never under the influence of the drug on company premises. In the employee’s lawsuit for wrongful termination under Colorado’s “Lawful Activities” law (the CO LA Law), which prohibits termination for off-the-clock legal behavior, the Colorado trial court dismissed, ruling that the employer had acted lawfully. The Court of Appeals agreed, reasoning that the employment termination was lawful because marijuana use is illegal under federal law and thus could not be considered “lawful activity” under the CO LA Law, even though it is explicitly legal under the state’s marijuana law. A copy of the appellate decision is available here. The CSC heard arguments on the case in October, and a decision is expected by year’s end.
The outcome in Coats could be significant for employers in all states
. Given that Colorado has been at the liberal forefront of legalizing marijuana, if the CSC affirms the ruling in favor of the employer, it will likely strengthen the right of employers in all states to terminate employment for any and all marijuana use, regardless of the legality of marijuana use under state law. A CSC outcome in favor of the employee, by contrast, would likely lead only to further confusion for employers across the country. Blanket bans on marijuana use would have to be reassessed, and employers may have to revise their policies relating to prescription drug use more generally.
Guidance on the above issues will emerge as states’ marijuana statutes are interpreted by courts. If courts continue to defer to federal law when evaluating claims brought under state marijuana laws (as the trial and appellate courts did in Coats), employers will be able to continue to enforce zero-tolerance drug policies and to discipline employees who fail drug tests as a result of marijuana use. But if the pendulum swings in the other direction and courts begin to look at medical marijuana laws as a state sovereignty issue—resulting in deference to state legalization laws—employers may have to wade through a dual system in which medical or off-hours recreational marijuana use has to be tolerated under state law even as it remains illegal under federal law. In that case, employers will have to revise drug testing policies to reflect “intoxication” standards for marijuana metabolites,
rather than imposing discipline for any presence of the drug, and they may have to consider dropping marijuana testing altogether.
As more states trend towards legalization, employers must keep close watch on legal developments in this area. Before disciplining an employee for a positive drug test arising from marijuana use outside of work, who does not present with current “intoxication,” employers should consult with experienced employment law counsel—especially if the employee in question has sought (or expresses a plan to seek) accommodation. It may be reasonable for employers to consult their drug testing vendors—both to stay abreast of advances in marijuana testing and to ensure a testing program that complies with state law.