Although marijuana remains illegal on the federal level, many states and the District of Columbia have enacted laws allowing the use of the drug for recreational and medical purposes. As of July 2015, eighteen states plus D.C. have decriminalized the possession of marijuana in small amounts for personal use.
For employers trying to navigate the murky legal waters of pot possession and use by employees, these laws pose a challenge. Cases thus far have been favorable to employers with courts siding with employers when it comes to wrongful termination lawsuits surrounding decriminalization, legalization and medical legalization. Although rulings have been favorable for employers, we continue to see new lawsuits and must wait to see how they are decided. The legalization of medical marijuana does not affect your right to maintain a drug free workplace. Workers can still be terminated for violating a company’s drug policy, whether the drug of choice is pot, alcohol, or another legal or illegal drug. Drug screening policies already in place may not necessarily need to be adjusted or changed. Understanding the different classifications of marijuana legalization and knowing the laws in the state (or states) in which you do business are the first steps in developing an informed workplace drug policy.
Following is a brief summary of the three different classifications of marijuana:
The decriminalization of marijuana is not the same as the legalization of marijuana, though the two are often confused. Decriminalization means that criminal penalties for small amounts of marijuana possession have been abolished, though are still punishable by fine. In other words, if a person is caught with a small amount of marijuana for personal use, he or she won’t be prosecuted or receive a jail sentence that will go on a criminal record. Instead, he or she may receive a ticket and a fine, much like that associated with minor traffic violations. If a person is in possession of more than the amount outlined in state law, that person can still be charged for distribution and be subject to both fines and prison and a permanent mark on a criminal record.
Medical Marijuana Legalization:
Many states have adopted medical marijuana laws that allow qualifying patients with debilitating medical conditions to use marijuana when prescribed by a doctor. State laws vary in terms of the amount prescribed, duration of treatment, and the patient’s permission to grow their own cannabis plants. Medical marijuana legalization has opened the door for the creation of medical marijuana dispensaries to supply patients with the marijuana prescribed to them.
Recreational Marijuana Legalization:
So far, Colorado, Washington, Alaska, and Oregon are the only states to have legalized marijuana, as well as Washington, D.C. Legalization means that marijuana users – all who must be over the age of 21 – cannot be arrested, ticketed or convicted of a crime for smoking or ingesting marijuana, if done so within the scope of the law. Similar to laws about alcohol consumption, the scope of legal marijuana use involves age, location, and amount consumed.
Click here to find out what the marijuana laws are in your state.
The following is an update to our February 24, 2014 blog post (see below)
Back in February, we reported on two cases involving employee medical marijuana usage for which the California and Washington Supreme Courts ruled in favor of the employer. There are two other pending medical marijuana cases which bear watching, as the outcomes may affect employer rights to a drug-free workplace: Coats v. Dish Network, LLC and Callaghan v. Darlington Fabrics Corporation. While Colorado courts have ruled in favor of the employer in Coats v. Dish Network, LLC , the case is now on appeal at the Colorado Supreme Court. Additionally, a new medical marijuana case, Callaghan v. Darlington Fabrics Corporation, was filed in November 2014 in Rhode Island. As these cases develop, we remind employers to work closely with their legal counsel in ensuring that company drug testing policies are structured in a way that protects their company from such lawsuits. Medical marijuana laws can be found in over 20 states and each state varies in its rules and coverage. Recreational marijuana laws (AK, CO, OR, WA) also vary by state. It is important for employers to be aware of the laws where they operate and to watch the legal developments in these cases, as well as those to come.
In the case of Coats v. Dish Network, LLC, Dish Network allegedly fired a quadriplegic
employee who had a medical marijuana card and tested positive for the drug. There were no allegations the employee was high at work, but Dish Network had a zero-tolerance policy on drug use. When the employee sued Dish Network, arguing that his termination violated the Lawful Activities Statute of the Colorado Civil Rights Act, the trial court sided with the employer and the appeals court agreed. The case was heard by the Colorado Supreme Court in September 2014 and a decision is expected very soon. The rulings in this case will impact employers in regard to both medical and recreational marijuana usage among employees and applicants (Colorado’s recreational marijuana law passed in 2012).
In the case of Callaghan v. Darlington Fabrics Corporation, the ACLU filed a lawsuit against Darlington Fabrics Corporation on behalf of a University of Rhode Island graduate student. The student, who possessed a medical marijuana card, was allegedly denied a paid summer internship by Darlington Fabrics after testing positive for marijuana. The ACLU’s lawsuit argues disability discrimination in violation of the state Civil Rights Act and medical marijuana law. In Rhode Island, the law legalizing medical marijuana states that “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” Many states that have legalized medical marijuana have no such language in their laws.
Hire Image will continue to monitor the outcome of these cases and explain how they may impact the workplace.
GOING GREEN: MORE STATES INTRODUCE MEDICAL MARIJUANA REGULATIONS AND LAWS
February 24, 2014
There are a number of reasons for upholding a drug free workplace. Increased productivity, fewer errors, and a safer working environment are just a few of them. With an increasing number of states passing laws legalizing medical marijuana, employers are raising a number of questions and showing various concerns about what this means for their desired drug free workplace. While the laws and policies in place are far from clear, employers do still have the right to perform drug screening on both their current employees and prospective applicants.
Marijuana is legal or decriminalized in twenty states, and twenty-one states and territories in the US have medical marijuana laws in place. As more states begin to follow this growing trend, we will see more and more employers facing the complicated features surrounding the issue. Even though the use of marijuana is legal on some statewide levels, it is still illegal under federal law. Federal law supersedes state law, allowing employers to terminate an employee after a drug screening reveals THC in their system, regardless of the state law. These situations are arising all over the United States, including Colorado, which is the first state to legalize both recreational and medicinal use of marijuana.
In the 2013 case Ross v. Ragingwire Telecommunications, the California Supreme Court ruled that it is not a violation of California law to dismiss an employee for testing positive for marijuana, even if the individual was recommended marijuana for medicinal purposes. More often than not, courts rule in favor of the employer in these types of cases. In the Roe v. Teletech case, the Washington State Supreme Court upheld the fact that “an employee discharged for her use of medical marijuana, properly authorized, has no cause of action under either the Medical Use of Marijuana Act (MUMA), Chapter 69.51A RCW or on public policy grounds.” While employees may take legal action against employers if terminated for use of medical marijuana, current trends show that courts typically rule in the employer’s favor.
Legalization of medical marijuana does not affect the right of employers to maintain a drug free workplace, thus workers can still be terminated for violating a company’s drug policy. These violations commonly include being in the workplace under the influence of marijuana or using marijuana while at work. However, employees might assume that they no longer need to abide by these policies if they have a medical recommendation for the substance. It is important for employers to be upfront and inform their current and prospective employees of the rules in place, and when any changes are made to these rules. It is also vital that human resources personnel monitor any legislative and legal developments, and review policies to ensure their compliance with the law.
Drug screening policies already in place do not necessarily need to be adjusted or changed. Employers may choose to make medical marijuana exceptions to their current drug policies, but are not required to. There are also options for employers who may wish to be a bit more lenient in their drug screening policies due to recent developments in the law. For example, a policy might include that if the person tests positive for marijuana but has a recommendation from a doctor, the result may be ignored provided the person does not have a safety sensitive position.
If your drug tests are processed through a Medical Review Officer (MRO), find out how results are reported when ‘authorized’ marijuana use is detected. In such cases, the MRO may report negative results, but may also include a special note on the report to differentiate this from a typical negative test. It is important to pay attention to the drug test reports to see if there are any notes from the MRO; a final negative determination may not always mean that nothing was found.
Employers should check references to ensure they know who they are hiring, and also perform background checks. References may reveal absenteeism and productivity issues, and criminal record checks may disclose previous abuse issues, DUIs, etc. A thorough background check may reveal an ongoing substance abuse problem. The more knowledge you have, the easier it will be for you to make an informed hiring decision. In non-regulated industries and states that allow for random drug screening, job description and duties should be considered when determining how often to conduct such screenings.
As an employer, you have the right to a drug free workplace. The choice is yours in deciding to change drug screening procedures or to continue on with the procedures already in place. Click here for more information about specific statewide medical marijuana laws.