Managing the Minefield of Marijuana in the Workplace.
By Donna Pryor
When medical marijuana first started to become legal, mine operators responded in a similar way. Most mines continue to have a zero tolerance policy for both applicants and current employees for several reasons: (1) being on a mine site is inherently safety sensitive, (2) mines are regulated by MSHA (a federal agency) that does not recognize marijuana as a legal drug and (3) because they’ve always done it that way.
Medical marijuana is now legal in 33 states and in the District of Columbia. Although marijuana remains illegal under federal law, state laws and recent court decisions are becoming challenging for employers. In fact, many state medical marijuana laws contain anti-discrimination provisions that provide job protections for medical marijuana users.
Companies may need to re-examine their policies, as there are now five pro-worker court decisions in five separate states that provide legal protections to employees that test positive for marijuana and have a medical marijuana card or prescription.
The Cases
- In Massachusetts, the Massachusetts Supreme Judicial Court found that a legal medical marijuana user terminated by a sales and marketing company can pursue a disability discrimination claim after she was fired for testing positive for the drug. In that case, the employee was hired for an entry-level position and told her employer she was using marijuana to treat symptoms for Crohn’s Disease.
When her pre-employment drug test came back positive, she was terminated. The court found that employers must engage in the interactive process with medical marijuana users to determine if there is a reasonable accommodation. See Barbuto v. Advantage Sales & Marketing, LLC, 78 N.E.3d 37 (Mass. 2017).
- In Delaware, an employee filed an action against Kraft Heinz Foods after he tested positive for marijuana in a post-accident drug test. The employee was a yard equipment operator and was operating a shuttle wagon on the railroad tracks when it derailed. The employee had a medical marijuana card for numerous health issues.
Among other claims for discrimination, the employee claimed he was discriminated against under the state medical marijuana law’s anti-discrimination provision. The Superior Court of Delaware held that a private cause of action exists under the law and confirmed that the federal Controlled Substances Act (making marijuana illegal under federal law) does not preempt the state law. See Chance v. Kraft Heinz Foods Co., No. CV K18C-01-056 NEP, 2018 WL 6655670 (Del. Super. Ct. Dec. 17, 2018).
- In Noffsinger v. SSC Niantic Operating Co., LLC, the U.S. District Court in Connecticut found for a plaintiff who alleged she was discriminated against under the Connecticut Palliative Use of Marijuana Act (PUMA). 338 F. Supp. 3d 78 (D. Conn. 2018). In that case, the plaintiff was hired as an activities manager at a nursing and rehabilitation facility. The job offer was contingent on passing a drug test, though the plaintiff told the company she was qualified under PUMA to use medical marijuana for PTSD.
After her drug test came back positive, her job offer was rescinded. While noting that the state statute provides that nothing in the law restricts an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence during work hours, the court held that the state’s medical marijuana law prohibited a company from rejecting a job applicant who failed a pre-employment drug test.
- Workplace safety was discussed in a case decided by the Rhode Island Superior Court. In that case, a fabric company refused to hire a paid intern after she tested positive for marijuana, after she disclosed she had a medical marijuana card. The defendants emphasized that their facility has dangerous equipment and expressed a concern for workplace safety.
Finding the company violated the state’s medical marijuana law when it refused to hire the intern, the court noted the state law does not permit “‘[a]ny person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.’” Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL 2321181, at *9 (R.I. Super. May 23, 2017) (quoting 21 R.I. Gen. Laws § 21-28.6-7(a)(1)). “If an employee came to work under the influence, and unable to perform his or her duties in a competent manner, the employer would thus not have to tolerate such behavior.” Id.
- Recently, the U.S. District Court in Arizona held that employees have the right to file a lawsuit under the state medical marijuana law. Arizona state law prohibits employers from discriminating against a person who tests positive for marijuana unless the cardholder used, possessed or was impaired by marijuana on the job, where that belief is based on a drug test sufficiently establishing the presence of metabolites or components of marijuana sufficient to cause impairment. Because the defendant (Wal-Mart) did not present expert testimony regarding these drug test results, the court found for the employee. Whitmire v. Wal-Mart Stores Inc., No. CV-17-08108-PCT-JAT, 2019 WL 479842 (D. Ariz., Feb 7, 2019).
Compliance
State regulations on worker protection for medical marijuana users vary, making compliance challenging for companies operating in various states throughout the country. For example, in Oklahoma, state law provides that:
“Employers may not take action against the holder of a medical marijuana license solely upon the status of an employee as a medical marijuana license holder or the results of a drug test showing positive for marijuana or its component.”
This law applies to both applicants and current employees. Hence, a blanket pre-employment screening for applicants that test positive for marijuana will no longer be permissible for medical marijuana license holders in Oklahoma.
States such an Illinois, Nevada and West Virginia also have varying degrees of protections for medical marijuana users in the workplace. To the contrary, some states that have legalized medical marijuana do not require that employers accommodate an employee’s use of medical marijuana.
What to Do
What is an employer to do given these variances in state medical marijuana laws and case law? The short answer: a blanket zero-tolerance policy, especially for companies operating in many states, may not be possible.
Since the purpose of most company policies on drugs and alcohol is workplace safety and some states have specific carve-outs for not allowing employees in safety-sensitive positions to test positive for the drug, operators are wise to tie any marijuana policy to the common goal of safety where possible. Operators should also closely review the state law of their operations, and develop a drug policy that is in compliance with their site’s state-specific medical marijuana regulations.
Donna V. Pryor is a partner at Husch Blackwell LLP. She represents those defending whistleblower complaints and contesting OSHA and MSHA safety citations. Additionally, Pyror offers training and regulatory insights to the firm’s multinational mining, manufacturing and heavy-industry clients. She can be reached at [email protected].