Medical & Recreational Marijuana in the Workplace: Must Employers in the US Allow It? 1

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1 ASSOCIATION OF CORPORATE COUNSEL March 4, 2015 Matthew F. Nieman, Esq. Jackson Lewis P.C. (703) Medical & Recreational Marijuana in the Workplace: Must Employers in the US Allow It? 1

2 INTRODUCTORY STATEMENT THE MATERIALS CONTAINED IN THIS PRESENTATION WERE PREPARED BY THE LAW FIRM OF JACKSON LEWIS P.C. FOR THE PARTICIPANTS OWN REFERENCE IN CONNECTION WITH EDUCATION SEMINARS PRESENTED BY JACKSON LEWIS P.C. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE. 2

3 Marijuana Under Federal Law: Background Under the federal Controlled Substances Act, marijuana is a Schedule I illegal drug that may not be used, possessed, manufactured or distributed, even for medical purposes. Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. 21 U.S.C. 812(b)(1). The U.S. Supreme Court has reiterated this fact. United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483, 121 S. Ct (2001) (holding that there is no medical necessity exception to the federal prohibition against manufacturing and distributing marijuana). In 2011, the federal Drug Enforcement Administration rejected a petition to re-schedule marijuana to Schedules III, IV or V of the federal Controlled Substances Act. This decision was upheld by a federal appeals court in January

4 Federal Government s Current Position Shortly after taking office, Attorney General Eric Holder announced formal guidelines for federal prosecutors in states that have authorized the use of medical marijuana, stating as a general matter, pursuit of these priorities should not focus federal resources in your States on individual's whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. On August 29, 2013, the Department of Justice announced that it would not challenge Washington s and Colorado s laws legalizing marijuana (not just medical marijuana). 4

5 Federal Government s Current Position Since the DOJ s August 2013 announcement, it has been generally accepted that the federal government will not stand in the way of medical and legal marijuana laws budget provides that the DOJ may not use federal funds to prevent certain states from implementing their own state laws authorizing medical marijuana. View is not shared by all members of Congress (e.g., recent Anti-Deficiency Act threats to D.C. government regarding recreational marijuana law) 5

6 States with Medical Marijuana Laws Medical marijuana laws are now in 23 states & DC: AK, AZ, CA, CO, CT, DE, DC, HI, IL, ME, MA, MD, MI, MN, MT, NV, NH, NJ, NM, NY, OR, RI, VT and WA. 6

7 Medical Marijuana Laws Medical marijuana laws stating employers need not accommodate marijuana use at work or prohibiting use at work: AK, AZ, CA, CO, CT, HI, MA, MI, MT, NH, NJ, RI, VT, WA States where employers have prevailed in medical marijuana litigation: CA, CO, MI, MT, OR, WA States where employees have prevailed in medical marijuana litigation: None. States with laws containing anti-discrimination or reasonable accommodation provisions: AZ, CT, DE, IL, ME, NV 7

8 States with Recreational Marijuana Laws Class of 2012: Colorado and Washington State. Class of 2014: Alaska, Oregon, and District of Columbia. 8

9 Recreational Marijuana Laws AK, CO, and D.C. laws permit employers to have policies prohibiting marijuana use. OR permits federal contractors to prohibit marijuana use. WA s law is silent with respect to employment. 9

10 Employees Regulated By Federal Agencies Safety standards imposed by federal agencies, such as the Federal Mine Safety and Health Administration and the Department of Transportation, do not provide for the use of medical marijuana by regulated employees. The Department of Transportation has issued a statement that the Department of Transportation s Drug and Alcohol Testing Regulation 49 CFR Part 40, at (e) does not authorize medical marijuana under a state law to be a valid medical explanation for a transportation employee s positive drug test result It remains unacceptable for any safetysensitive employee subject to drug testing under the Department of Transportation s drug testing regulations to use marijuana. What does this mean for employers? o Here, you should follow the federal safety requirements. 10

11 The Americans with Disabilities Act The federal Controlled Substances Act states that marijuana is illegal and has no accepted medical use. o Accordingly, it cannot be considered a reasonable accommodation for a disability. The Americans with Disabilities Act expressly excepts illegal drug use from coverage employers do not need to accommodate illegal drug use. Therefore, terminating an employee for medical marijuana use will not implicate federal antidiscrimination law. But what about state law? 11

12 Potential Risk Under State Laws So far, no court has concluded that any state law requires employers to accommodate medical marijuana use. However, the cases litigated so far involved medical marijuana statutes without an anti-discrimination provision. We do not yet know how the anti-discrimination provisions of the newer medical marijuana laws will be interpreted. Even in these states, however, there is a strong argument that federal law pre-empts state law. 12

13 Lawful Activities Laws A number of states have laws prohibiting employers from taking adverse actions against employees for engaging in lawful activities. These states include: California, Colorado, New York, and North Dakota. Of these four, only Colorado has a recreational marijuana law. A number of states have laws prohibiting employers from taking adverse actions against employees for using lawful consumable products. These states include: IL, MN, MO, MT, NV, NC, TN, and WI. None of these states has a recreational marijuana law. 13

14 Risk in State Court Takes on Preemption Despite the strong federal pre-emption argument, however, there may be risk in state courts, given that state courts do not always feel bound to follow federal courts or federal law. This is particularly true now that the federal government has stated that it does not oppose state medical and recreational marijuana laws. o Michigan court that granted unemployment benefits to medical marijuana users stated that a state court is not bound by decisions of a federal court. o New Mexico court that required reimbursement of medical marijuana expenses noted that the federal government has changed its position on marijuana. 14

15 Managing the Risk In the states with anti-discrimination provisions, when analyzing accommodation requests, consider: o Can the applicant/employee really perform the essential functions of the job with or without a reasonable accommodation? (Consider nature of employee s illness; when and how frequently must he/she use medical marijuana). o Is the job safety-sensitive? If yes, the applicant/employee may pose a direct threat to the health and safety of himself/herself and/or others. o What is your tolerance for risk? How important is it to have one nationwide policy with regard to marijuana use? 15

16 Final Thoughts If you employ safety sensitive employees, you might elect not to comply with state medical marijuana laws (even though there may be some risk in some states). Greater legal risk is that a known marijuana user causes an accident that injures/kills people. Remember there is little case law out there if you choose to follow federal law, you may run the risk of being your state s test case for medical marijuana accommodation. But if you make the decision to accommodate, you are choosing to abandon compliance with federal law. 16

17 Thank You! Questions? 17

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