On July 7, 2014, New York became the 23rd state (plus the District of Columbia) to legalize medical marijuana, bringing the number of Americans who may lawfully use the drug with proper medical certification and/or supervision to approximately 100 million. The overwhelming acceptance by Americans of medical marijuana has even made its mark in the nation’s capital, where, in May, the U.S. House of Representatives amended an appropriations bill to prohibit the Drug Enforcement Administration from using taxpayer dollars to target and arrest patients and providers operating under state licenses.

Where medical marijuana is authorized, users have an affirmative defense to criminal prosecution under state law. Apart from the impact in the criminal context, however, only a handful of states address the impact of medical use in other areas of day-to-day life, including employment. Connecticut, Maine, Rhode Island, and Illinois all prohibit discrimination of employees based solely on their status as medical marijuana patients. Arizona and Delaware go so far as to prohibit employment discrimination for failing to pass a drug test for marijuana in certain circumstances. It seems that no courts have addressed the constitutionality of such prohibitions, however.

Employers looking for guidance in the remaining states are faced with seeming “gaps” where the law is silent on the issue of discrimination. Based on court decisions to date, these gaps should not be feared, but should be accepted as a continuation of the current balance between federal and state civil law and the at-will employment doctrine.

The Supreme Courts of California, Oregon, Montana, and Washington have all denied the existence of a civil cause of action against employers for termination after testing positive for marijuana as discrimination under state or federal law. Roe v. TeleTech Cust. Care Mgmt., 257 P.3d 586 (Wash. 2011); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010); Johnson v. Columbia Falls Alum. Co., LLC, 2009 MT 108N; 2009 Mont. LEXIS 120; 2009 WL 865308 (Mont. Mar. 31, 2009); Ross v. RagingWire Telecomms., Inc., 174 P.3d 200 (Cal. 2008) Washburn v. Columbia Forest Prods., Inc., 143 P.3d 161 (Or. 2006). While state and federal laws prohibit discrimination on the basis of a particular disability, these courts have found that there are no protections for the use of marijuana, even for certified medical purposes, recognizing that such use remains “illegal” under federal law.

In 2013, Colorado’s appellate court also found that state-licensed use is not a “lawful activity” for purposes of employment discrimination, and in January 2014 the Colorado Supreme Court granted certiorari to hear the matter. Federal courts, including the Supreme Court and Sixth Circuit, agree that federal prohibition against the use of marijuana for any purpose trumps state law, although retired Justice Sandra Day O’Connor, former Chief Justice William Rehnquist, and Justice Clarence Thomas have questioned the federal government’s authority over wholly intrastate medical activities. Gonzales v. Raich, 545 U.S. 1 (2005) (O’Connor, J., dissenting); U.S. v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001); Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012).

As always, employers are cautioned to review their employment policies on a regular basis to ensure compliance with all statutes and regulations, as well as determinations by state labor agencies. When navigating the issue of medical marijuana, the following should be considered:

• A top priority for employers should be safety in the workplace. Numerous prescription drugs and other legal substances will impair an employee’s ability to perform her or his job without risk of injury, and any policy should aim to minimize all potential threats to employee safety. Any protections afforded for registered users of medical marijuana in certain states do not insulate an employee who is obviously impaired.
• Whatever the contents of an employer’s drug-use policies and procedures, they can (and should) cite relevant laws and regulations whenever possible to provide a clear basis for the employer’s position, and, more importantly, be enforced in consistent manner unless and until there is a legitimate reason to believe the law has changed. This is why policies and procedures should be reviewed on a regular basis.
• Federal rules and regulations regarding drug use and testing may be incorporated into contractual language and state regulations seemingly unrelated to the issue of illegal drug use, such as Department of Transportation regulations regarding general safety.
• Drug-testing should be performed in a uniform and non-discriminatory manner, and in compliance with all applicable regulations regarding an employee’s privacy rights, recognizing that different tests utilize a variety of standards and methods, thereby producing different results. Employers are encouraged to identify the purpose of drug-testing prior to selecting the method of such testing.

While a growing number of Americans accept the use of medical marijuana, the issue remains hotly contested, partially due to its relationship to treatment for serious illnesses. An employer is well advised to avoid an unbalanced or heavy-handed policy either allowing or prohibiting use of medical marijuana that could affect overall morale.

If you have questions about this decision and its impact on your business, please contact:

• James M. Paulino II (585.295.8351; jpaulino@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group.