As more and more states adopt medical marijuana laws, employers increasingly face the question of addressing marijuana use for medicinal purposes within the context of zero tolerance, drug free workplace policies. Complicating the picture is the difficulty in testing whether an employee is “under the influence” at work.
With time and dilution, alcohol dissipates in the bloodstream in relatively short order, usually overnight. Marijuana conversely can be detected through current testing methods weeks after use and long after any intoxicating effects have passed. Because of the timeframe of detectability, random drug/alcohol testing is of little use for a state protected activity like the use of medical marijuana.
Adding to the conundrum is marijuana’s continued illegality under federal law. In 2005 the U. S. Supreme Court determined that the federal law was valid and that it trumped state medical marijuana laws. See, Raich v. Gonzales. To pile on further complexity, current U. S. Attorney General Eric Holder has discontinued the practice of raiding medical marijuana dispensaries. That would appear to give the appearance of quasi-legal acceptance of medical marijuana by the Justice Department.
Caught in the middle are employers who, for good reason, seek to have drug free work environments. Employees who drive, operate machinery or work in health care – as a few examples – can, and often do, create health and safety hazards when they attempt to perform their jobs under the influence. To the extent that an employer allows an employee to continue in his/her employment while using medical marijuana that employer risks facing the liability claims of anyone injured as a result of an individual working under the influence as well as the consequences of providing less than acceptable products or services.
Buffeted from the other side, the employer is required under the ADA [Americans with Disabilities Act] to make reasonable accommodation to those with chronic conditions which may be relieved by the use of medical marijuana. Termination and/or failure to reasonably accommodate could be grounds for action by the employee under the ADA or various state statutes. If that were not enough, OSHA regulations require employers to provide a safe workplace.
Little has been decided by the courts to date. The few state courts that have looked at the issue have sided with employers’ drug free policies based on safety concerns. But, other states, like Colorado, have “lifestyle” laws in addition to medical marijuana laws. Those lifestyle laws make it illegal for an employer to take action against an employee, or potential employee, based on legal activity outside the workplace. In that context, the use of medical marijuana outside the workplace, so long as the employee does not show up intoxicated for work – which the employer cannot effectively test – may be protected. A case is currently working its way through the Colorado legal system which may eventually shed light on this variant.
Currently employers who want a drug free workplace for moral, safety or liability reasons are being advised by human resources firms and many employment lawyers to adopt a policy that employees cannot use any controlled substance that is illegal under either state or federal law. With the current Justice Department policy, the ADA, OSHA and “lifestyle” laws, there is serious question whether that approach will be sufficient to fully protect them. It may well turn out that it will protect them in some states but not others.
The standard debate is between those who believe employers are over-regulated and those who believe that regulation of business is a necessary public duty. Sometimes, as with medical marijuana, the real impact on business is a Hobson’s choice that was not anticipated by well meaning people advocating for their particular cause.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.