As of today, 23 states and the District of Columbia have passed laws that provide for the legal use of medical marijuana (in addition, 4 of these states and the District of Columbia have legalized the recreational use of marijuana). Because the law varies from state to state it is often unclear what, if any, accommodations employers are required to provide to employees who use medical marijuana. In addition, some state law includes provisions that prohibit discrimination in the workplace against employees who use medical marijuana. Although state laws generally do not permit marijuana use during working hours, on the employer’s premises or when use could create a safety hazard, these laws often directly conflict with an employer’s zero-tolerance drug policy or other policies that may prohibit the use of marijuana. Adding to the confusion for employers, marijuana still is an illegal drug under federal law.
Pennsylvania has not yet passed a law that legalizes the use of medical marijuana. However, in May 2015 the Pennsylvania Senate passed a bill that would legalize certain uses of medical marijuana. While that bill stalled in the Pennsylvania House, legislators are currently working on a new version of a law that, if passed, would legalize certain uses of medical marijuana. It is likely that Pennsylvania will legalize the use of medical marijuana in some form in the near future and that Pennsylvania employers will have to deal with these same issues.
So, What’s an Employer to Do?
If you operate a business in a state where use of medical marijuana is legal, you need to review applicable state law before taking any employment action against an employee in connection with the employee’s use of marijuana for medical reasons. As mentioned above, state law requirements vary and your state may include an anti-discrimination provision or may require a duty to attempt to accommodate the employee under state law. Even in the absence of such provisions under a state’s medical marijuana law, an employer should be aware of other potential risks.
What are Some of the Risks?
Some states have laws that prohibit employers from taking adverse actions against employees for engaging in lawful conduct while off-duty. For example, the Colorado Supreme Court recently addressed a challenge under such a law by an employee who was terminated because he tested positive for marijuana in violation of his employer’s zero-tolerance drug policy. The employee was a medical marijuana user whose use of marijuana was lawful under Colorado state law. There was no evidence that the employee used marijuana while at work or that he was impaired or otherwise under the influence of marijuana while at work. The employee claimed that his termination was improper because it was based on lawful activity (i.e., off-dutyuse of medical marijuana). The Colorado Supreme Court rejected the employee’s argument, holding that because marijuana remained illegal under federal law, the employee could not rely on Colorado’s lawful off-duty conduct law.
Federal and state laws that prohibit discrimination based on disabilities, such as the federal Americans with Disabilities Act (the “ADA”), also may create potential risks for employers dealing with employees who legally use medical marijuana under state law to treat a recognized disability. The ADA, however, does not provide protection to persons engaged in the use of illegal drugs. As marijuana remains illegal under federal law, it is unlikely that an employee who is discharged or suffers some other employment action because of the use of medical marijuana will find protection under the ADA. Nevertheless, the risk remains that an employee who suffers an adverse employment action based on his or her use of medical marijuana could assert a claim under the ADA or a similar state law.
As laws in this area continue to develop and change, employers should review their workplace drug policies to make sure that they are up to date and comply with current applicable state and local laws. In addition, employers should consult with their employment counsel when they intend to discipline or discharge an employee in connection with marijuana use, particularly in states where the use of marijuana is legal for either medical or recreational purposes.