Reefer Madness

The legalization of medical marijuana has been a hotly debated and closely watched trend in the public sector. The pendulum of public opinion has shifted with an increase in support and more states approving legislation. Currently, 23 states have legalized medical marijuana. But what does this shift mean for employers in local government? Laws vary in each state regarding employer practices, restrictions of use, and general policies of marijuana in the workplace. There are few court cases to provide any guidance.

This lack of regulation or precedent creates unique challenges for public entity employers, who are charged with the running of public spaces and community programs, such as law enforcement, public works, parks, and transportation. To better formulate an internal policy, it is helpful for government entities to have a basic understanding of the current trends and legislative developments regarding medical marijuana.

Hazy from the Start

Compassionate Use Acts, have provided beneficial relief to those suffering debilitating conditions and allowed these individuals to be more active in the workforce with fewer absences due to chronic conditions and symptoms. In 1996, when California became the first state to legalize medical marijuana, its statute, which was later used as a model by other states, did not specifically address employment. Card-holding employees were surprised to learn that despite criminal protections, they were still subject to termination in the workplace.

The Americans with Disabilities Act also offers little protection. It provides that a “qualified individual with a disability” does not include an individual who is currently engaging in “illegal use of drugs.” Lacking protection on a federal level, employees then looked to the typically broadly construed state human rights acts and public policy arguments.

Medical marijuana users in the workplace faced one court opinion after another holding that there was no protection against termination for their THC-positive drug screens. The rationale for these decisions was rooted in two primary theories: medical marijuana remains illegal under federal law and the four-corners of the statute lacked any intent by the state legislature to protect users from discrimination or termination.

The most recent theory advanced by cardholders seeking workplace protection was under state lawful use statutes. This argument advanced in Coats v. Dish Network, LLC, was decided by the Colorado Supreme Court in June 2015. Following in the footsteps of California, Colorado’s Compassionate Use statute failed to address employer-employee relations in the statute. Colorado precedent previously established that the state human rights act did not protect workers such as Mr. Coats.

When Mr. Coats, a quadriplegic who used medical marijuana off-duty to calm muscle spasms, tested positive for THC and was terminated from his position as a telephone customer service representative at Dish Network, he looked to Colorado’s Lawful Use Statute. This statute was intended to protect workers who engage in legal activities during non-work hours that are not condoned by their employers. Like the courts before it that have reviewed medical marijuana issues, the Colorado Supreme Court also placed great weight on the fact that marijuana is a Schedule 1 drug under the Controlled Substances Act and remains illegal under federal law.

In reviewing the Lawful Use Statute, the Colorado Supreme Court held the term “lawful” to mean “that which is permitted by law” or “that which is not contrary to, or forbidden by law.” It emphasized that the Lawful Use Statute did not limit the term “lawful” to only that allowed under state law and encompasses what is “lawful” under Federal law as well. Because, marijuana remains illegal under federal law, without any exception for medicinal purposes, or any express allowance for a state to legalize it for any such purpose, the court held that medical marijuana use was not a “lawful” activity under the Colorado Lawful Use statute and Mr. Coats was not protected from termination.

Increasingly, cardholders are no longer exclusively those near the end of life, and it can be difficult for employers to understand who holds a medical marijuana card. Although drug testing is the most common way of finding out, such testing has been decreasing in popularity. The number of private companies that report using drug testing dropped from 81 percent in 1998 to 62 percent in 2004. Additionally, public sector employers are limited to testing only “safety sensitive” positions, as drug tests are considered a “search” under the Fourth Amendment and the due process and equal protection clauses limit testing to certain situations and positions.

Anti-discrimination

There are a number of states (Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, and Rhode Island) that have included specific anti-discrimination language into their respective Compassionate Use Statutes. These statutory protections fall into two categories — protections based upon cardholder status alone and duel protection for card holder status and a failed drug screen. Even so, most statutes are clear that these protections do not prohibit employers from terminating employees who are clearly “high” on marijuana or in possession or using marijuana at certain buildings where children might be present, including pre-schools, primary or secondary schools, many of which are primary concerns for public sector employers.

Profession-specific restrictions are also common, especially if the use could possibly result in injury to others. Most of the laws specially prohibit use while operating a motor vehicle or as a passenger on public transportation, and possession or use on school buses. Other states focus on the particular licenses held by employees and prohibit use by a person who has a school bus permit or a Commercial Driver’s License. In addition, professionals, many with licensure in their field, are generally prohibited from using medical marijuana and undertaking certain activities if they would result in negligence or professional malpractice.

However, the Compassionate Use Statutes are clear that that disciplinary action by an occupational or professional licensing board for being a cardholder or using pursuant to state law is not actionable. Illinois’ law goes even further by singling out specific professions. Under its law, active duty law enforcement officers, correctional officers, correctional probation officers or firefighters are prohibited from using medical marijuana. It would appear that this law would stretch to include using medical marijuana during off-duty hours. The Illinois law is the only law that specifically targets certain, primarily public sector employees.

New York’s law is one of the broadest and requires an employer to accommodate the use of medical marijuana. The New York Compassionate Use Act amends the definition of “disability” in the State Human Rights Act. By doing so, a medical marijuana cardholder is automatically deemed a person with a disability and as with any qualified individual, New York employers must reasonably accommodate the needs of that employee. The New York law contains some limits on accommodation, for example an employer can be exempt from the accommodation requirements if it would put the employer in violation of federal law or cause it to lose a federal contract or funding. However, the New York law does not carve out any position-specific exceptions, such as safety-sensitive positions, an issue New York public sector employers will need to address.

In contrast, Illinois’ language is likely the narrowest, providing an opt-out for zero-tolerance workplaces. Illinois’ statute provides that “[n]othing prohibits an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug-free workplace provided the policy is applied in a non-discriminatory manner.” The act goes on to provide that an employer is allowed to discipline a medical marijuana cardholder for violating a company drug policy. The only other out for employers is much more limited.

In most states, employers are exempted from the anti-discrimination provisions if they can show that they would lose a federal contract, license or benefit as a result of compliance. A zero-tolerance policy may be a policy public sector employers in Illinois will consider as certain “safety sensitive” provisions are specifically exempt from the protections of the Illinois Compassionate Use Act, and it may be easier to enforce one consistent policy throughout the town, city, school or agency.

Public Sector Employers

Public sector employers in the nine states that already have marijuana addressed in their state’s anti-discrimination provisions should contact competent legal counsel specializing both in public sector and employment law to assist in reviewing personnel policies and handbooks to ensure they comply with current state law. Managers and supervisors should be trained on the requirements of the respective state medical marijuana law and understand what, if any, positions are exempt from the law or whether reasonable accommodations are necessary. Because public sector employers are more likely to have site-specific restrictions, notices should be placed in those facilities and all employees should be provided training on what is and is not allowed in the workplace with respect to medical marijuana use, possession and storage.

Both claim professionals and risk managers should be selective in choosing counsel to represent public sector entities in this area. Many anti-discrimination provisions have not been challenged in court cases so there is little case law to use as guidance and assess liability and damages. For this reason, choosing counsel who is active in the legal community, involved with other legal professionals who specialize in employment and public sector work, and attends seminars on this topic is important so that counsel has a broad knowledge base to offer in addressing each case that may arise.

Employers can also work toward clearing the haze surrounding the use of medical marijuana in the workplace by working with their risk managers, insurers and legal counsel to make sure their employment policies comply with applicable law.