Marijuana in the Workplace

By Philip R. Voluck and Jennifer L. Prior

Businesses across the country are confronting escalating drug use in the workplace by their employees. Underlying this problem is the use of marijuana lawfully prescribed by physicians for medical issues, and the conflict between state and federal law. It will not be resolved anytime soon, leaving employers in a quandary regarding their ability to control the use of marijuana by employees during working hours.

Marijuana, regardless of its medical or recreational purpose, remains illegal under the Federal Controlled Substances Act; but 33 states plus the District of Columbia have legalized it for medical use, and 11 states plus the District of Columbia have legalized it for recreational use as well. These inconsistencies have created confusion for employers — and not just in states where it is legal in some form — regarding issues such as drug testing and how to handle positive results, and making reasonable accommodations for medical marijuana users with disabilities.

The U.S. Equal Employment Opportunity Commission issued guidance tied to the Americans with Disabilities Act (ADA) some years ago, allowing an employer to require medical examinations at any stage in the employment process. However, conflicts between federal and state law can arise when medical examinations reveal the applicant or employee’s use of marijuana in states that prohibit discrimination on the basis of legal marijuana use. The EEOC will likely issue new guidance once the full scope of the legal inconsistencies is revealed.

Another contradiction between federal and state law exists regarding an employer’s obligation to make reasonable accommodations for medical marijuana users. As marijuana remains illegal under federal law, employers are not required to make such accommodations under the ADA. Use of a controlled substance forfeits protection of qualified individuals with a disability. Many state laws, like Pennsylvania’s Medical Marijuana Act, cover individuals who use medical marijuana only if that individual has an underlying serious medical condition, which could warrant a reasonable accommodation regardless of marijuana use.

Conflicts in federal and state law can also create confusion for employers in states that have legalized medical and/or recreational marijuana use, yet remain subject to certain federal mandates. For example, the Drug-Free Workplace Act applies to entities that receive federal contracts of at least $100,000, or federal grants in any amount. The Act requires, as a condition of funding, maintaining a drug-free workplace where employees are prohibited from engaging in the “unlawful manufacturing, distribution, dispensation, possession, or use of a controlled substance,” including marijuana.

Similarly, under the Federal Commercial Motor Vehicle Operator Law, employers are required to drug test their employees during pre-employment, reasonable suspicion, random, returnto-duty, follow-up and post-accident testing. The Department of Transportation enabling regulations specifically requires employers to test employees for marijuana metabolites, and to immediately remove an employee who tests positive for marijuana from safetysensitive positions.

Certain state laws prohibit employers from taking an adverse employment action against an employee solely on the basis of the employee’s status as an individual who is certified to use medical marijuana. However, the Pennsylvania law provides some protection for employers. It prohibits employees from possessing or using medical marijuana while at work, allowing employers to discipline employees for being under the influence while at work “when the employee’s conduct falls below the standard of care normally accepted for that position,” and not requiring an employer to commit any act which would cause it to violate federal law.

Other states, like Maine and Nevada, which have legalized both medical and recreational marijuana, prohibit employers from discriminating against applicants or employees based on purely offduty marijuana use. As of January 1 of this year, Nevada became the first state to prohibit employers from discriminating against employment applicants on the basis of a positive marijuana test. If an employer in Maine seeks to drug test its employees, it must implement a drug test policy that has been approved by the Maine Department of Labor.

Nevada became the first state to prohibit employers from discriminating against employment applicants on the basis of a positive marijuana test.

State and federal courts throughout the country have ruled inconsistently, depending on the level of marijuana legalization in the particular state. In January 2020, in Hager v. M&K Construction, an appeals court in New Jersey, where medical marijuana is legal, upheld a 2018 workers compensation judge’s ruling that an employer must reimburse its employee who sustained a spinal injury on the job for the cost of his medical marijuana and any related expenses. Courts in Connecticut, New Hampshire and New Mexico have made similar rulings.

In February 2019, in Witmire v. Wal-Mart Stores, Inc., a Wal-Mart employee in Arizona sued Wal-Mart for discriminating under the Arizona Medical Marijuana Act by suspending, then terminating her, based solely on her positive drug results. The employee was required to take a urine drug test as a result of a work accident that occurred two days prior. The court held that WalMart terminated her solely based on her positive drug results in violation of the state law, which prohibits an employer from terminating a medical marijuana user for positive test results, absent the employee’s use during work hours.

However, in August 2018, in Cotto v. Ardagh Glass Packing, Inc., a federal court in New Jersey held that “neither the New Jersey Law Against Discrimination nor the New Jersey Compassionate Use Medical Marijuana Act require an employer to waive a drug test as a condition of employment for federallyprohibited substance.”

Even in states like California, where medical and recreational marijuana is legal, it remains common for employers to drug test their employees out of concern for opiate use, especially in safetysensitive positions involving the use of heavy machinery. Failing to screen for controlled substances can increase an employer’s liability in the event of workplace accidents and increase their workers’ compensation insurance premiums.

While employers in most states are legally permitted to subject their employees and applicants to drug tests, the accuracy and implications of drug test results remain in question. Experts on workplace drug screening have agreed that urine tests for marijuana fail to indicate the frequency of a job applicant’s marijuana use, and are not an accurate indicator of marijuana intoxication of current employees on the job. The reason for this lack of accuracy is that the chemical in marijuana responsible for most of its psychological effects can remain in the body for days, or even weeks following an individual’s marijuana use. Therefore, a positive test is neither indicative of intoxication, nor frequency of use.

What is an employer to do in the face of such confusion? It remains axiomatic that no federal or state law prohibits employers from disciplining or terminating employees who report to work impaired by any type of substance, whether medically prescribed or not. In North Dakota, where voters are considering placing the legalization of recreational marijuana on the 2020 ballot, the issue has been raised to the state’s lawmakers that workers found to be under the influence of marijuana could be precluded from collecting workers’ compensation. Federal law also preempts state law, meaning employers subject to federal mandates have no choice but to comply, regardless of state legalization.

Considering the inconsistency in federal and state laws, businesses can benefit by implementing well-crafted drug use and possession policies that address an expanding array of circumstances. Such policies should clarify positions that are not protected by state medical marijuana laws, such as federal contract employees and safety-sensitive positions; exclude pre-employment drug screening for marijuana unless required by federal law, yet allow for post-hiring drug screening in the event of reasonable suspicion or an accident; and create a process for employees certified to use medical marijuana to provide notification to the employer prior to a potential positive drug test.

Marijuana in the workplace is a very fluid issue. For the time being, the federal government can be expected to assume a “hands off” policy and continue to allow states to craft their own laws and regulations governing marijuana use in the workplace.

Philip R. Voluck is co-chair of the Labor and Employment Practice at Kaufman Dolowich & Voluck. He concentrates his practice on employment discrimination, retaliation and wrongful discharge. pvoluck@kdvlaw.com

Jennifer L. Prior is an associate at Kaufman Dolowich & Voluck. She focuses her practice in the area of employment practices liability defense.