Tag: Marijuana

Growing Questions About Employee Medical Marijuana Use Leave Employers in a Haze

The intersection of employment and marijuana laws has just gotten cloudier, thanks to a recent decision by the Rhode Island Superior Court interpreting that state’s medical marijuana and discrimination laws. In Callaghan v. Darlington Fabrics Corporation, the court broke with the majority of courts in other states in holding that an employer’s enforcement of its neutral drug testing policy to deny employment to an applicant because she held a medical marijuana card violated the anti-discrimination provisions of the state medical marijuana law.

Background

Plaintiff applied for an internship at Darlington, and during an initial meeting, she signed a statement acknowledging she would be required to take a drug test prior to being hired.  At that meeting, Plaintiff disclosed that she had a medical marijuana card.  Several days later, Plaintiff indicated to Darlington’s human resources representative that she was currently using medical marijuana and that as a result she would test positive on the pre-employment drug test.  Darlington informed Plaintiff that it was unable to hire her because she would fail the drug test and thus could not comply with the company’s drug-free workplace policy.

Plaintiff filed a lawsuit alleging Darlington violated the Hawkins-Slater Act (“the Act”), the state’s medical marijuana law, and the Rhode Island Civil Rights Act (“RICRA”). The Hawkins-Slater Act provides that “[n]o 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.”  After concluding that Act provides for a private right of action, the court held that Darlington’s refusal to hire Plaintiff violated the Act’s prohibition against refusing to employ a cardholder.  Citing another provision that the Act should not be construed to require an employer to accommodate “the medical use of marijuana in any workplace,” Darlington contended that Act does not require employers to accommodate medical marijuana use, and that doing so here would create workplace safety concerns.  The court rejected this argument, concluding:

  • The use of the phrase “in any workplace” suggests that statute does require employers to accommodate medical marijuana use outside the workplace.
  • Darlington’s workplace safety argument ignored the language of the Act, which prohibits “any person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.” In other words, employers can regulate medical marijuana use by prohibiting workers from being under the influence while on duty, rather than refusing to hire medical marijuana users at all.
  • By hiring Plaintiff, Darlington would not be required to make accommodations “as they are defined in the employment discrimination context,” such as restructuring jobs, modifying work schedules, or even modifying the existing drug and alcohol policy (which prohibited the illegal use or possession of drugs on company property, but did not state that a positive drug test would result in the rescission of a job offer or termination of employment).

The court thus granted Plaintiff’s motion for summary judgment on her Hawkins-Slater Act claims.

With respect to Plaintiff’s RICRA claim, the court found that Plaintiff’s status as a medical marijuana cardholder was a signal to Darlington that she could not have obtained the card without a debilitating medical condition that would have caused her to be disabled. Therefore, the Court found that Plaintiff is disabled and that she had stated a claim for disability discrimination under RICRA because Darlington refused to hire her due to her status as a cardholder.  Importantly, the court held that the allegations supported a disparate treatment theory.

Finally, while noting that “Plaintiff’s drug use is legal under Rhode Island law, but illegal under federal law [i.e. the Controlled Substances Act (the CSA”)],” the Court found that the CSA did not preempt the Hawkins-Slater Act or RICRA. According to the court, the CSA’s purpose of “illegal importation, manufacture, distribution and possession and improper use of controlled substances” was quite distant from the “realm of employment and anti-discrimination law.”

Key Takeaways

While this decision likely will be appealed, it certainly adds additional confusion for employers in this unsettled area of the law – particularly those who have and enforce zero-tolerance drug policies. The decision departs from cases in other jurisdictions – such as California, Colorado, Montana, Oregon, and Washington – that have held that employers may take adverse action against medical marijuana users.  The laws in those states, however, merely decriminalize marijuana and, unlike the Rhode Island law, do not provide statutory protections in favor of marijuana users.  In those states in which marijuana use may not form the basis for an adverse employment decision, or in which marijuana use must be accommodated, the Callaghan decision may signal a movement to uphold employment protections for medical marijuana users.

While this issue continues to wend its way through the courts in Rhode Island and elsewhere, employers clearly may continue to prohibit the on-duty use of or impairment by marijuana. Employers operating in states that provide employment protections to marijuana users may consider allowing legal, off-duty use, while taking adverse action against those users that come to work under the influence.

Of course, it remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana.  Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment and, in any event, observation alone does not indicate the source of impairment.  Employers choosing to follow this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.

All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; (b) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test. Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users.  Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user.

The Callaghan decision also serves as a reminder of the intersection of medical marijuana use and disability.  Here, the court allowed a disability discrimination claim to proceed even though Plaintiff never revealed the nature of her underlying disability because cardholder status and disability were so inextricably linked.

Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but to applicants as well. In Callaghan, the court found the employer in violation of state law before the employee was even offered the internship or had taken the drug test.

This post was written byNathaniel M. Glasser and Carol J. Faherty of Epstein Becker & Green, P.C.

Marijuana in the Workplace: The Growing Conflict Between Drug and Employment Laws

Despite the growing number of states that have legalized the use of marijuana, the drug remains illegal under federal drug laws. The legal landscape is made more confusing when considering the differing levels of employment protection that these state laws offer to marijuana users. With this patchwork of state laws, employers are left to grapple with whether and how to accommodate their employees who use marijuana for medical purposes or for off-duty personal consumption.

The Legal Landscape

Twenty-three states and the District of Columbia have legalized medical and/or recreational use of marijuana. These jurisdictions provide marijuana users with varying levels of protection against employment discrimination. The majority—Alaska, California, Colorado, Georgia, Hawaii, Maryland, Massachusetts, Michigan, Montana, New Jersey, New Mexico, Oregon, Vermont, and Washington—merely decriminalize use. Other jurisdictions—Arizona, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Minnesota, Nevada, New Hampshire, New York, and Rhode Island—in addition to decriminalizing use, also provide statutory protections against discrimination. Some of these jurisdictions even require accommodation of underlying disabilities.

However, marijuana is still classified as a Schedule I drug (high potential for abuse, no acceptable medical use) and remains illegal under the federal Controlled Substance Act (“CSA”). While last year Congress passed a bill to defund the Department of Justice’s efforts to challenge state-legal medical marijuana programs, the Obama administration’s public position is that it “steadfastly opposes legalization of marijuana.”

Federal precedent in this area has provided employers with broad rights to take adverse action against individuals who use marijuana, whether or not for medical purposes and/or protected under state law. For instance, under the Americans with Disabilities Act (“ADA”), courts have held that marijuana users—regardless of the legality of the use under state law—are not qualified individuals with a disability entitled to anti-discrimination protections. See, e.g., James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012).

Employers, however, must be careful not to rely on medical marijuana use as a pretext for firing an employee with an underlying disability. The U.S. Equal Employment Opportunity Commission (“EEOC”) recently took aim at a Michigan-based assisted living center that fired a nursing administrator who used medical marijuana to treat her epilepsy and thus failed a drug test on her second day of work. EEOC v. Pines of Clarkston, Inc., No. 13-CV-14076, 2015 U.S. Dist. LEXIS 55926 (E.D. Mich. Apr. 29, 2015). The district court denied the employer’s motion for summary judgment on the individual’s ADA claim. Although acknowledging that a positive test for medical marijuana constituted a legitimate, non-discriminatory reason for discharge, the district court concluded that the EEOC raised a genuine issue of material fact as to whether the articulated reason was a pretext for disability discrimination, particularly because the employee had been questioned about her disability during her interview and subsequently after the positive drug test. The case eventually settled but should be heeded by employers as a warning that a positive drug test for marijuana may not insulate them from discrimination claims under the ADA.

Unresolved Conflict Between Employer and Employee Rights Under State Law

State law provides greater protections to marijuana users. However, while courts have infrequently addressed the conflict between state law employment protection and marijuana use, those that have considered such issues generally have found in favor of an employer’s right to take adverse action against an employee who tests positive for marijuana.

The Colorado Supreme Court highlighted this issue when, in Coats v. Dish Network, 350 P.3d 849 (Colo. 2015), it held that an employee may be fired for using marijuana even though he legally used the drug off duty. Colorado law prohibits termination for lawful off-duty conduct, and Coats was a registered medical marijuana patient who only consumed marijuana during non-work hours. Nevertheless, because smoking marijuana was still illegal under the federal CSA, the court held that such use did not constitute lawful conduct under the Colorado statute.

The decision in Coats is consistent with earlier decisions in California, Montana, Oregon, and Washington that have held that decriminalization laws do not confer a legal right to smoke marijuana and that employers may take adverse action against users. See Ross v. RagingWire Telecomms., Inc., 174 P.3d 200 (Cal. 2008); Johnson v. Columbia Falls Aluminum Co., LLC, No. 08-0358, 2009 Mont. LEXIS 120 (Mont. 2009); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010); Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, 257 P.3d 586 (Wash. 2011). Of course, statutes in these states have decriminalized marijuana use but do not expressly provide employment protections to users.

Employers must tread more carefully in jurisdictions that grant express protections to marijuana users. Courts in these states have not decided whether an employee’s rights under such a state statute trump the rights of an employer to take adverse action against the use of a drug categorized as illegal under federal law.

Advice for Employers

While many implications of legalizing marijuana use are yet to be decided by the courts, employers clearly may continue to prohibit the on-duty use of, or impairment by, marijuana. Employers, particularly federal contractors required to comply with the Drug Free Workplace Act, also may continue the implementation of workplace drug testing programs.

Employers, however, must treat positive tests for marijuana cautiously. Decisions in California, Colorado, Montana, Oregon, and Washington collectively provide support to take adverse action against employees who use marijuana, recreationally or medicinally, and may suggest that such employer-favorable rulings will issue even from courts reviewing state statutes providing employment protections. Thus, a bright-line approach to discharging or refusing to hire marijuana users may be defensible related to marijuana use. But given the uncertain state of the law, employers should consider taking the following steps to reduce potential liability:

  • Engage in the interactive process to determine whether medical marijuana use can be accommodated.

  • Particularly in jurisdictions providing employment protections for medical marijuana users, engage in a fact-based inquiry to determine whether the individual is a medical marijuana cardholder and whether the job can accommodate the individual’s use of medical marijuana.

  • Develop and/or review policies that expressly address the right to take adverse action upon a finding of marijuana use.

  • When taking such adverse action, document the reasons to avoid a pretext argument.

Of course, employers should work with legal counsel to closely monitor the changing legal landscape in their jurisdictions as this area of unsettled law is ripe for future litigation.

Article By Nathaniel M. Glasser & Jonathan K. Hoerner of Epstein Becker & Green, P.C.
©2015 Epstein Becker & Green, P.C. All rights reserved.

Marijuana-Legalization Efforts and Their Impact on the Presidential Race

With the race for the White House heating up, the “politics of marijuana” is looming as a possibly significant factor.

marijuana-leaf white background

Twenty-four state ballot initiatives on marijuana legalization in 16 states have been filed already and will be voted on in November 2016, including in the “swing states” of Arizona, Colorado, Florida, Michigan, Missouri, Nevada, and New Mexico.

This is important because marijuana-legalization ballot initiatives are widely acknowledged to “turn out the vote” of single-issue, first-time, and younger voters – all of whom disproportionately vote Democratic. In close races and swing states, they may make the difference. Insiders have reported that these voters have determined the outcome in several contested races and states in the last two election cycles (e.g., in Barack Obama’s defeat of Mitt Romney in Colorado in 2012).

Moreover, the marijuana-legalization issue is increasingly a focus in U.S. Senate and House races and in pro- and anti-marijuana bills. Recently, the House Republican leadership successfully stripped out pro-marijuana-legalization amendments to two pending bills.

Away from Capitol Hill, twenty-four states and Washington, D.C., already allow for “medical”-marijuana use – at least under some circumstances. Four states (Alaska, Colorado, Oregon, and Washington) and the District of Columbia allow adults to smoke marijuana “recreationally.”

However, proponents’ efforts to introduce marijuana into the legal and cultural mainstream have met with opposition in the workplace and the courts. Even as many states allow “medical” or “recreational” use of marijuana to some extent, the courts have upheld employers’ interests in maintaining drug-free workplaces against challenges by job applicants or employees who were not hired or have been terminated because of marijuana-related substance-abuse-prevention policy violations. Employers have prevailed in every court case brought by employees claiming a “medical”-marijuana justification for their positive drug tests after the company’s adverse employment action – including many decisions in California, Colorado, Michigan, Montana, Oregon, and Washington.

This litigation results from a clash between a culture that increasingly accepts marijuana and companies that prohibit illicit drug abuse because of legitimate safety and productivity concerns. The conflict ultimately will be resolved by Congress or the courts (four lawsuits currently are pending to invalidate Colorado’s legalization of marijuana). Meanwhile, the current Administration, through the U.S. Justice Department, has acquiesced in states legalizing marijuana, essentially by refusing to enforce the federal Controlled Substances Act in those states – an unprecedented policy. This policy could change on January 20, 2017, when a new president is inaugurated.

Thus far, most presidential contenders have shied away from the issue. However, former Texas Governor Rick Perry (R) has endorsed decriminalization. Kentucky Senator Rand Paul, a Libertarian, has consistently supported states’ rights to establish their own marijuana policies and supports decriminalizing marijuana possession. Former Secretary of State Hillary Clinton (D) has hinted that she is comfortable letting the states continue to experiment.

Conversely, New Jersey Governor Chris Christie (R) and Texas Senator Ted Cruz (R) have strongly opposed marijuana legalization, and Florida Senator Marco Rubio (R) also is on record as opposing marijuana legalization.

What the Congress does between now and mid-2016 may be critical. Supporters of marijuana legalization are gearing up. The marijuana industry has hired well-positioned lobbying firms. One of their top issues is to fix the rules that bar marijuana businesses from using banks. The well-funded National Cannabis Industry Association (NCIA) is supporting legislation that would change federal law to recognize the rights of local jurisdictions, including Washington, D.C., to create and regulate their own marijuana laws.

Finally, the U.S. Senate Appropriations Committee voted in support of opening banking services to state legal marijuana business. Senate Bill 683, the CARERS Act of 2015, introduced by New Jersey Senator Cory Booker (D), seeks to amend the federal Controlled Substances Act (21 U.S.C. § 801 et seq.) to ensure that CSA would not apply to anyone acting in compliance with state law relating to the production, possession, and distribution of medical marijuana. The proposal transfers marijuana from Schedule I to Schedule II of the CSA and prohibits federal banking officials from discouraging depository institutions from providing financial services to a marijuana-related, state-permitted legal business. A similar amendment was passed by the full House of Representatives in 2014. The House has not yet taken up the issue in 2015. House Republicans, however, supported a budget plan that would prevent legal sales of marijuana in the District until at least 2017.

Estimates indicate that the value of the legalized marijuana industry currently approaches $3 billion nationwide and is growing. Obviously, a lot is at stake.

The resolution of the marijuana-legalization issue, at both the federal and state levels, could play a significant role in determining the outcome of the upcoming presidential election.

Article By Mark A. de Bernardo & Robert Horn of Jackson Lewis P.C.
Jackson Lewis P.C. © 2015

Oklahoma and Nebraska Challenge Colorado’s Amendment 64: Legalized Marijuana

In 2012, Colorado was the first state to legalize recreational marijuana with Amendment 64.  While this has made Pizza Franchisors happy and sent snack sales through the roof, it has also created controversy and unintended consequences.  The entire country has watched Colorado sort through these issues, curious to see how things will land, how much people really want to get high, and most of all, exactly how much money is there to be made?  Along with these practical issues and enforcement questions, several legal issues have come into play as marijuana legalization—and its conflict with federal law—has changed the landscape.  Perhaps most significantly are the legal challenges to Colorado’s statute in front of the Supreme Court.

Colorado’s Amendment 64 changed the State Constitution to allow for recreational use of marijuana. According to the law, Adults 21 or older can grow up to six cannabis plants, with 3 being mature at a time, and legally possess all the cannabis from those plants.  Adults may also travel with up to one ounce of marijuana while traveling, and gift up to one ounce to other adults 21 or over.  Consumption is regulated like alcohol.  The sale and growth of marijuana is regulated by the state, with licenses available for both growers and retail outlets.

The Attorney Generals’ of neighboring states Oklahoma and Nebraska, Scott Pruitt and Jon Bruning, respectively, have sued Colorado.  The complaint cites Colorado for creating a “scheme” that “frustrates the federal interest in eliminating commercial transactions in the interstate controlled-substances market, and is particularly burdensome for neighboring states [Oklahoma and Nebraska] . . . States where law enforcement agencies and the citizens have endured the substantial expansion of Colorado marijuana.”  Colorado’s Attorney General, John Suthers, was against marijuana legalization when it was being debated, but now he is tasked with defending the state’s controversial measure.

Oklahoma and Nebraska take issue with Colorado’s failure to take steps to prevent the drug from leaving the state.  In particular, the complaint takes issue with Colorado not requiring patrons to smoke or eat the marijuana where they purchase it, or tracking marijuana once it is sold, or requiring a background check on purchasers.  The law, in fact, only requires a driver’s license that says you are 21 to purchase the drug.  Colorado has no effective way, according to the complaint, to stop “criminal enterprises, gangs and cartels from acquiring marijuana inventory directly from retail marijuana stores.”

Concerns about a black market exist, and how the law might be creating gray areas in how pot is sold and cultivated.  A CNBC documentary “Marijuana Country: The Cannabis Boom” examines some of these issues.  Cameras follow two pot dealers as they show how loopholes in the law allow them to profit from their excess marijuana, grown legally, in a gray market heavy with craigslist postings and terminology—he is a caregiver, not a dealer, and he gifts the marijuana and receives gifts of cash in return.  It’s easy to see how this gray area doesn’t stop at the state line.

In fact, law enforcement officials from counties neighboring the Colorado border say they are seeing more Colorado marijuana, some of it still in the retail packaging, flow into their counties.  The strained jail budgets in these counties are a result of the increased enforcement costs—more impounded vehicles, more arrests and higher costs all around because of the pot coming down the highway.  Colorado AG John Suthers says 40 states have contacted his office regarding marijuana seized within their borders, and the Washington Post has gone so far as to call Colorado “the nation’s giant cannabis cookie jar.”

It is for these reasons that Oklahoma and Nebraska have filed their complaint.  Invoking the Constitutional provision that gives the Supreme Court original jurisdiction on disputes between the states, basing their complaint on the claim to the right to have federal laws prevail over contradictory state laws under the Supremacy Clause of Article VI of the Constitution.  Nebraska and Oklahoma v. Coloradohas not received permission to be filed by the court.   It should be interesting to see how the case develops.  But with over 130 metric tons of marijuana sold, legally, in Colorado last year, the demand is not going away.

The court documents and the complaint are here.

ARTICLE BY

Eilene Spear
OF
The National Law Review / The National Law Forum LLC