Employee Survival Guide® - Marijuana Laws and the American Workplace

Starting point is 00:00:00 Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does not want you to know about and a lot more. Today's episode, we're going to talk about marijuana laws and the American workplace, a pretty hot topic, no pun intended. It's sort of legal, but not totally legal at work, dude. The legal landscape for marijuana use has changed. Like the delightfully shifting colors and the lava lamp in your college dorm room,

Starting point is 00:00:34 the current status of weed in the American workplace is in an ever-changing state of flow. In recent years, marijuana use has become increasingly legal in the United States. 39 states have legalized cannabis for medical use, and 18 states plus the District of Columbia have legalized adult recreational use as well. Notwithstanding this tidal wave of state legislation, the federal government has maintained its blanket prohibition against cannabis. Under the Controlled Substances Act, marijuana remains a Schedule I drug, along with heroin and cocaine.

Starting point is 00:01:06 Go figure. But what does this dual state and federal status mean for the traditional prohibition against marijuana use at work? Can someone be fired for using pot at work in states where it's legal for all adults? Can people be fired for using medical marijuana on duty? What about the pre-employment drug tests? Can they be used to screen out cannabis users in fully legal states? Can you be fired for off-duty use of marijuana? The answers are elusive and depend on a confluence of state and federal law, as well as employer policies.

Starting point is 00:01:40 Although there are cannabis reform bills making the rounds on Capitol Hill, Although there are cannabis reform bills making the rounds on Capitol Hill, including the Marijuana Opportunity Reinvestment and Expungement Act, which is called MORE, M-O-R-E, which would federally legalize cannabis, employers in individual states have struggled to deal with the evolving workplace issues that have recently developed. Can employers ban weed or not? Some states and local jurisdictions have made laws prohibiting discrimination based on medical and in some cases even recreational marijuana use. These laws prevent employers from taking adverse actions against employees who lawfully use cannabis provided that they do not do so on the job. But that too is complicated.

Starting point is 00:02:23 Because marijuana can take up to 30 days to fully metabolize in the human body, unlike alcohol or cocaine. It is often difficult to determine whether an employee who tests positive for pot used it at work or outside of work. This makes it hard to determine whether the employee was actually impaired on the job. Employers must be careful in enforcing their drug policies against lawful cannabis users. It is clear that employers can prohibit marijuana use during working hours in most of all cases. Employers have a definite right and financial interest in ensuring that employees are not coming to work intoxicated by marijuana, alcohol, or any other drugs. The issue is how can an employer prove marijuana

Starting point is 00:03:06 intoxication and how can a prohibition on marijuana off-duty be enforced in weed legal jurisdictions. The issue for employers is often workplace safety. Because it's very difficult for employers to determine if a positive drug test for cannabis is the result of drug use during work or on off-work hours, some employers find it logistically simpler to just have a complete ban on marijuana on or off duty. Because marijuana is still illegal under federal law, zero-tolerance weed policies may still be enforced in many jurisdictions. State and local laws protecting legal cannabis have been increasingly complicating the situation.

Starting point is 00:03:53 Most states with medical marijuana laws provide more protections in the workplace for medical marijuana users rather than recreational users. Even where medical marijuana is protected, however, employers can require drug testing before employment and at random times so long as there is no discrimination against medical marijuana users. Some employers are continuing tight restrictions and zero-tolerance policies, even for out-of-work weed use. Others are changing their policies and disciplining employees for cannabis use only if an accident results or performance is affected. A few employers are even permitting open consumption of marijuana during work. As more states begin to legalize, employee attitudes are changing. Employee morale can be affected by these changing attitudes.

Starting point is 00:04:33 Many workers believe that legal use of cannabis outside of work should not be ground for termination if they fail a drug test. Employers need to consider the changing attitudes in the workplace when deciding how to handle the new cannabis landscape. Workplace safety changes the dynamic. Although many jurisdictions are passing laws protecting medical and even recreational use of cannabis in the workplace, the dimensions of the protections are very different when applied to jobs that involve public safety and transportation. And then in these contexts, the laws are erring on the side of employers and public safety. Those who employ police officers, firefighters, and mass transit professionals, for example, are permitted to maintain and enforce zero-tolerance policies against marijuana use on and off duty.

Starting point is 00:05:20 It makes sense, and I think we all agree with this. The potential risks often associated with cannabis use on the job have caused changes in workers' compensation laws in a few states. For example, in Wisconsin, a worker injured while under the influence of any substance, including cannabis, will suffer a reduction in compensation benefits. In the state of Michigan, workers under the influence of any substance, including marijuana, at the time of the injury are not entitled to workman's compensation benefits at all. Drug testing must be legal. Yet another wrinkle in the patchwork tapestry of workplace marijuana laws is the issue of improper or illegal drug testing. Even in jurisdictions where employees can be terminated for a positive marijuana drug test, if the screening itself is unlawful, then the employee cannot be fired. While federal law does not place limits on drug testing, many states and local jurisdictions

Starting point is 00:06:10 regulate how and when employers can conduct drug tests. In general, employers may test new applicants more freely than permanent employees. Employers may usually drug test applicants after making a conditional offer of employment. In some jurisdictions, however, an employer cannot conduct routine or random drug tests of their current employees. Often the employer is required to test only under certain conditions, such as when an employee is involved in a workplace accident or when an employee is returning to work after a drug rehabilitation program. Some state drug testing laws require that the employee have notice after a drug rehabilitation program. Some state drug testing laws require that the employee have notice of a drug test and that the test be administered by the least invasive means possible. The courts weigh in. An interesting place to view these

Starting point is 00:06:56 workplace marijuana policies is from a judicial perspective. How are our courts interpreting this patchwork of laws and regulations around the workplace use of cannabis? During the early years of legalization, courts tended to favor employers, enforcing anti-drug policies over newly legalized cannabis users. In California, employers have been permitted to terminate workers who test positive for weed, provided that the employer complies with its own drug-free workplace policies. In Colorado, in the case of Coats v. Dish Network, the Colorado Supreme Court decided a case brought by an employee who was quadriplegic and needed medical marijuana to control leg spasms. The employee used medical

Starting point is 00:07:38 cannabis with a valid prescription during off-duty hours. The employee was fired after testing positive in a random drug screening test given by the employer. According to the Colorado Supreme Court, the state's medical marijuana law, which protected lawful off-duty use of marijuana, did not preempt the company's zero-tolerance policy. Because the court said that the lawful activity is defined by federal as well as state law. The state statute did not protect the off-duty use of cannabis. That was 2015, by the way. In recent years, however, the courts have increasingly sided with employees whose medical and even off-duty recreational use of cannabis is protected by new state and local laws. In Arizona, in the case of Whitmore v.

Starting point is 00:08:23 Walmart, Inc., a federal district court judge ruled against Walmart, Inc. for terminating an employee who tested positive on a workplace drug test following an injury she sustained on the job. The woman had been prescribed medical marijuana and the court held that she was protected under the state's Arizona Medical Marijuana Act, AMMA. The key fact in that case was that the employer could not establish with scientific evidence that the employee had used marijuana at work or just outside of work. This is a real-life example of the testing difficulties described previously. In this case, the employee was able to maintain her own action for wrongful termination. In Connecticut, in the case of

Starting point is 00:09:02 Natsiger v. SSC Niantic Operating Co., the federal district court in Connecticut, Judge Meyer, held that an employer violated Connecticut's Palliative Use of Marijuana Act, PUMA, when it rescinded a conditional offer of employment following a positive initial drug test for cannabis. The prospective employee was qualified as a medical user under PUMA due to treatment for PTSD. The court held that the employer had violated PUMA by withdrawing the offer of employment. The employee was able to bring a private right of action. In the case of Chance v. Kraft Heinz Food, a Delaware court recently faced facts similar to those at issue in the cases previously discussed. The court held that the Delaware's medical marijuana law prohibiting discrimination against lawful use of cannabis, the Delaware Medical Marijuana Act, DMMA, allows an employee to sue his employer for wrongful termination after his employment was terminated due to a positive post-accident drug test result for marijuana. The employer argued that the federal law preempted the state anti-discrimination law

Starting point is 00:10:07 because marijuana is illegal under the Controlled Substances Act as a Class I drug. The Delaware court held that the preemption does not apply because the anti-discrimination provisions of the DMMA do not pose an obstacle to the objectives of Congress, nor do they render compliance with both federal and state law impossible. The DMMA does not require employers to participate in an illegal activity, but instead merely prohibits employers from discriminating based on medical marijuana. The court also found a private right of action to enforce DMMA. Protect yourself, know the law. While these cases are emblematic of a

Starting point is 00:10:47 new trend towards protecting legal cannabis use in the workplace, much remains uncertain in this evolving legal space. Employers should be cautious and arm themselves with detailed knowledge of the laws in their states and local jurisdictions before deciding whether to prohibit or to allow medical or recreational use of marijuana by their employees. Liability for illegal discrimination could result if medical marijuana laws are violated. Employees must be cautious and be sure they understand the local and state laws as well as their employers' policies before using marijuana and potentially putting their job at risk. Some employers maintain policies that are

Starting point is 00:11:25 no longer legal, so employees should be aware if they are in a workplace that does not follow the law. I hope you find this topic helpful to you, and if you need more information, please contact our office. Have a great week. Be sure to rate us, review us on this podcast, as we're always trying to help you. And talk to you soon. Thank you.

Employee Survival Guide® - Marijuana Laws and the American Workplace

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