Marijuana in the Workplace: Employee Protection as Legalization Spreads

This election has seen a huge boom in marijuana legalization. There are now 26 different states with marijuana legalized in some form or another. Of these states, eight have legalized recreational and medical use while the rest have restricted legalization to medical use.  In all these states, the legislature will have to deal with the unanswered question: how should marijuana be dealt with in the workplace?

Cases on the issue have already begun in many different contexts. Just recently the Massachusetts Superior Court addressed the issue of whether an employer needs to make accommodations due to disability for an employee’s medical marijuana use.  Massachusetts rules that despite the fact that the marijuana was prescribed to treat the employees Crohn’s disease, an employer is still under no obligation to accommodate such use.

This ruling is in line with a trend across the nation.  States are legalizing marijuana, but having difficulty in deciding how or whether to protect its use in an employment context. The approach has been different state to state–as it must be with marijuana illegal at a federal level–and has seen states dealing with employment issues from disability to off duty use, leading to adverse action to employment benefits to workers’ compensation.

Employees Treating Disabilities with Medical Marijuana

Massachusetts’ take on disability is not surprising. While the outer limits of employee protection based on disability is often determined by state law, the minimum protection is governed by the American’s with Disabilities Act (ADA).  The ADA is a federal act protecting against disability discrimination.  However, it explicitly does not it does not cover employees or applicants who engage in illegal use of drugs.  Since marijuana is federally illegal, this means that marijuana use cannot be a protected disability under the ADA.

As mentioned above, states can expand their disability protections beyond the floor set by the ADA.  However, many states have not exactly been in a rush to do so when it comes to marijuana use.  Just like Massachusetts, Oregon courts have ruled that an employer need not make accommodations for medical marijuana use so long as it is federally illegal.  In California, the California Supreme Court ruled that employers have no need to accommodate medical marijuana use even when that use is off duty.  Although, it should be noted that this was decided prior to recreational legalization.

This being said, there have been other states that have passed laws protecting medical marijuana users as disabled. Arizona, Connecticut, Delaware, Illinois, Manie, Minnesota, and Nevada all have laws protecting employees who use medical marijuana against adverse action (firing, failure to hire, refusal of promotions, etc.) due to their disability.  The exact nature and scope of these rules varies state to state, but they all have the ultimate effect of protecting employees who use medical marijuana by placing some type of duty to accommodate that use on employers.

Punishing Off-Duty Use?

While disability laws deal with how an employer must deal with prescribed marijuana use, some states have dealt with off duty marijuana use in more broad strokes–deciding how marijuana use factors into a wrongful termination lawsuit.  Wrongful termination is any sort of firing which is contrary to law.  Disability discrimination can give rise to a wrongful termination lawsuit, but the cause of action is much broader than discrimination and includes basically any type of illegal firing.

The most famous of these cases occurred in Colorado after Dish Network fired an employee for off duty medical marijuana use. The firing took place before marijuana was made recreationally legal in the state, but the ruling occurred after this change.

The court ruled in favor of Dish Network. They decided that, despite Colorado law forbidding employers from firing an employee based on their legal off duty activities, an employer could freely fire an employee for off duty marijuana use so long as marijuana is federally illegal.  Thus, the employee was not wrongfully terminated. Similar rulings have been also been reached in Michigan and Washington.

Medical Marijuana Disqualifying Employees From Unemployment Benefits

Very few states have actually dealt with the issue of medical marijuana use and how it affects unemployment benefits.  Only two states have really dealt with the issue and they were unhelpful enough to come to opposite conclusions.

In Colorado, an employee fired for marijuana use–even if it is off duty prescribed medical marijuana use–is disqualified from unemployment benefits. Michigan, on the other hand, has determined that an employee cannot be disqualified from unemployment benefits for their lawful off duty marijuana use.

Workers Compensation and Cannabis

Much like unemployment benefits, rulings have been unfortunately sparse when it comes to workers’ compensation and medical marijuana. Workers compensation laws protect employers from liability in exchange for an agreement to pay for any injuries that take place in the workplace, regardless of cause.

Once again, the rulings have been contrary to one another depending on the state. Maine has ruled that workers’ compensation can’t require an employer to pay for medical marijuana prescribed as a result of a workplace injury.  New Mexico, however, has held that employers must pay for such treatment when it is prescribed.

Marijuana in Federal Workplaces

Even where marijuana has been legalized at a state level, many state employers may still be regulated by the federal Drug Free Workplace Act. This law requires all federal contractors and employers receiving federal grants to maintain a zero-tolerance policy towards any federally illegal drug use.

These workplaces may find themselves in a conflict between state and federal law. In these cases, federal law will generally win out.  What’s more, where a position is safety sensitive, employers may also choose to implement a zero-tolerance policy.  Safety sensitive is a very broad classification and such a classification, coupled with a zero-tolerance policy, will likely alter an employee’s rights under state law.

Complicated Cannabis: Evolving Law

The interactions between marijuana use and employment law are far from fixed and will continue to grow more complicated as the federal standing of marijuana forces all these interactions to be a question of state law. The states have already shown that they are far from in agreement as to how the issues should be approached and most states where marijuana is legalized in some form have not even begun to address these issues.

There are arguments on both sides for how the law should evolve. An employer would certainly not be criticized for firing an employee who showed up to work drunk. However, it would be a different matter if they fired that employee for drinking in their own home while off duty. While this is obviously not a perfect analogy, just as marijuana is not completely analogous to alcohol, it does highlight the question of whether how marijuana is viewed and treated on a legal level will change as recreational use becomes more widespread. Marijuana is now legal in more states than it is not, the law will have to scramble to keep up with the appropriate rights and duties of employers and employees.