Workplace Drug Policies and Employee Drug Testing in the Era of Marijuana Legalization

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1 ABA Forum on Construction Law Division 11 Hot Topic July 20, 2017 Workplace Drug Policies and Employee Drug Testing in the Era of Marijuana Legalization Christine M. Burke Lorenger & Carnell PLC 651 South Washington Street Alexandria, Virginia (703) Main (703) Direct (703) Fax

2 Overview Employer Drug & Alcohol Policies Forbid employees from using, manufacturing, selling, or possessing drugs at the workplace or when conducting business Prohibit being under the influence at work or while conducting business Drug testing pre-hire, random, reasonable suspicion, post-accident

3 Overview Employer Drug & Alcohol Policies Most policies allow employers to discipline including discharge for being under the influence at work, or after a positive drug test Most employers felt comfortable disciplining/terminating based on marijuana use/positive marijuana test

4 Overview Marijuana Under Federal & State Law Schedule I drug under federal Controlled Substances Act high potential for abuse and potential to create severe psychological and/or physical dependence But many states have legalized medical marijuana, and several have legalized recreational marijuana

5 Overview How does marijuana legalization affect employers? When marijuana is illegal under federal law but legal in some states: Employers who conduct drug testing are unsure how to respond to positive marijuana tests Employers with drug and alcohol policies are unsure whether to prohibit marijuana-related conduct, and if so, what kinds

6 Legal Landscape General Where is marijuana legal? Recreational marijuana Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington, and the District of Columbia Medical marijuana Broad use legal in 28 states and the District of Columbia Some additional states have narrow laws allowing medical marijuana under very limited circumstances

7 Legal Landscape Statutes Do marijuana legalization statutes address employment? Recreational marijuana Some laws are silent or ambiguous Some laws state that they are not intended to require employers to permit marijuana use in the workplace or affect policies restricting marijuana use (e.g., Colorado, Massachusetts)

8 Legal Landscape Statutes Do marijuana legalization statutes address employment? Recreational marijuana (cont d) Maine is the first state whose statute expressly protects employees against discrimination for using marijuana outside of work Prohibits employers from refusing to hire an employee solely because the person engages in off-duty marijuana use But, employer may enact policies restricting use at work or discipline employees under the influence at work

9 Legal Landscape Statutes Do marijuana legalization statutes address employment? Medical marijuana Some laws are silent or ambiguous Some laws protect employees from discrimination based on status as medical-marijuana user Employers may have to demonstrate employee used or was under the influence at work E.g., Connecticut, New York, Illinois, Delaware, and others

10 Legal Landscape Case Law What do the courts say? Recreational marijuana statutes have not been addressed by the courts yet Medical marijuana laws Where there is no express provision requiring employer accommodation of medical marijuana use, the courts have overwhelmingly allowed employers to take adverse action for positive marijuana test

11 Legal Landscape Case Law What rationales do courts use? Medical marijuana laws only de-criminalize possession they do not create a public policy concerning marijuana in the employment context Ross v. RagingWire Telecommunications, 174 P.3d 200 (Cal. 2008) Roe v. TeleTech Customer Care Mgmt. LLC, 257 P.3d 586 (Wash. 2011) Casias v. Wal-Mart Stores, Inc. 695 F.3d 428 (6 th Cir. 2012) (Michigan law) Coles v. Harris Teeter, LLC, 2016 U.S. Dist. LEXIS (D.D.C. 2016)

12 Legal Landscape Case Law What rationales do courts use (cont d)? Marijuana is still unlawful under federal law, so employers can take adverse action against employees for illegal drug use Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015) Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Ore. 2010)

13 Related Problems What about the Americans with Disabilities Act (ADA)? Prohibits discrimination against qualified individuals with disabilities, and requires employers to provide reasonable accommodation to disabled employees to allow them to perform their job Could marijuana use be a reasonable accommodation under the ADA?

14 Related Problems What about the ADA (cont d)? ADA does not protect illegal drug use Exception for drugs taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal law Does that exception include use of medical marijuana when prescribed by a licensed health care professional who is allowed to do so under state law? What if the state law requires accommodation of medical marijuana use?

15 Related Problems What about the ADA (cont d)? Few court decisions generally hold that medical profession cannot rewrite federal law to bring marijuana use into ADA s protection James v. City of Costa Mesa, 700 F.3d 394 (9 th Cir. 2012); Barber v. Gonzales, 2005 U.S. Dist. LEXIS (E.D. Wash. 2005) May depend on how favorable the state law is for employees does it require employer accommodation or not? Does it allow employer to prohibit use at workplace or not?

16 Related Problems What about the Family and Medical Leave Act (FMLA)? FMLA requires employers to provide leave to eligible employees for serious health conditions What if employee uses medical marijuana while on leave and is required to take a test upon return, and drug is still in his/her system? Drug use during leave is irrelevant because not at work, but if employee is terminated based on positive test at return, could face FMLA retaliation claim

17 Conclusion Practice Pointers In most jurisdictions, employers should be able to continue to test for marijuana use and take disciplinary action based on positive test, especially if only recreational marijuana at issue But check state law!! Some states are more protective of employees than others. Closely review medical marijuana statutes to determine if employers must accommodate lawful off-duty use.

18 Conclusion Practice Pointers (cont d) Consider changes to drug policy based on workplace culture: If wish to prohibit and can lawfully do so in your state, ensure that policy addresses drugs illegal under state or federal law, including marijuana Consider only testing in reasonable suspicion/postaccident situations, so as not to capture off-duty use that doesn t affect work Consider only testing employees in safety-sensitive positions Have a clear policy, communicate it, and apply it consistently, so employees know what to expect!

19 ABA Forum on Construction Law Division 11 Q & A