NACE Journal, February 2016

Ten years ago, if an employee or intern came to work after spending time smoking marijuana, the employer had a simple solution: termination.

Today, employers are faced with increasing issues when presented with an employee who is under the influence of marijuana, tests positive for the drug, or requests the ability to be able to use marijuana for a medical reason. However, merely because the employee claims that "it is legal" does not make it "legal" in the workplace.

Currently, almost half the states (and the District of Columbia) have enacted laws that legalize the use of medical marijuana, and several states (and the District of Columbia) have legalized the use of recreational marijuana. Additionally, even if a state has not specifically adopted legislation permitting the use of marijuana on a medical or recreational basis, several cities within states have adopted such legislation. The federal government, however, has not adopted any legislation that legalizes marijuana. This is where problems arise for employees and employers.

As an initial matter, the answer to the question of "what to do" is very simple for employers in states that have not enacted legislation pertaining to the legalization of marijuana: In such a case, marijuana is still an illegal drug, and employees should not be permitted to engage in the use of the drug. (Note: While many people, including employers, may not have an issue with the use of marijuana, if an employer permits its employees to engage in the use of marijuana or does not treat a positive test for marijuana as an issue, it is opening the door to other potential claims, such as claims of discrimination or potential third-party liability claims if an accident or incident occurs. This is true regardless of whether use of marijuana is legal in the employer's state; an employee under the influence of marijuana is considered as not different from an employee under the influence of alcohol, in terms of liability claims.)

Drug Testing and Employer Policies

The first major issue that comes into play with regard to the legalization of marijuana is drug testing in the workplace.

Generally, an employer is permitted to conduct preemployment, random, or reasonable suspicion drug testing provided it has an effective drug and alcohol policy.

The question that has now been presented is whether employers in states that have legalized marijuana are still permitted to conduct such testing.

The simple answer to that question is "yes." Employers are permitted to continue to engage in drug testing regardless of the state where they are located.

Marijuana is currently a Schedule I drug under federal law. Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Regardless of whether marijuana is legal in numerous states, it remains an illegal drug under federal law.

In the last few years, several courts have been presented with claims that an employer wrongfully terminated its employee for testing positive for what the employee claimed was now a "legal" drug.

The courts that have been presented with this issue have routinely held that an employee is not protected if he or she is terminated for smoking marijuana.

The most recent case occurred in Colorado, in the matter of Coats v. Dish Network. In Coats, the plaintiff was subject to a random drug test that showed the presence of marijuana in his system. The employer had a "zero tolerance" policy for the use of drugs and, therefore, terminated the plaintiff's employment. The trial court dismissed the employee's claim on the basis that the use of marijuana, even if legalized under state law, was not a legal activity. In June of 2015, the Colorado Supreme Court upheld the ruling of the trial court and ruled that an employer is still permitted to terminate an employee who engages in activity that violates federal law. Accordingly, employers may still conduct drug testing and discipline and terminate employees who test positive for marijuana, even in states that have legalized the use of the drug.

Employers, however, are not required to enact such policies in states where marijuana is legalized unless they are a federal contractor.

Policy Requirements for Federal Contractors Vs Other Employers

The Drug-Free Workplace Act (DFWA) requires federal contractors to prohibit the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance by employees in their workplace as a condition of employment.

Under the DFWA, federal contractors must establish programs regarding drug-free awareness and create and enforce policies that subject employees to discipline and termination for any violations. Because marijuana is still an illegal substance under federal law, it is covered under the DFWA. As such, employers with federal contracts must have policies that prohibit the use of the illegal drug, including marijuana—even if they are in a state that has legalized marijuana.

If an employer does not have federal contracts and resides within a state that has legalized the use of marijuana, the development of a policy is within its discretion. It is recommended that if an employer adopts a policy that permits the use of marijuana, it treat it in the same fashion as alcohol. The policy should prohibit employees from reporting to work or working while "under the influence of alcohol and/or other drugs that adversely affect the employee's ability to safely perform his or her job duties." The policy should further permit the employer to conduct random and reasonable suspicion drug and alcohol testing. The policy should also indicate that an employee's refusal to take a drug or alcohol test will be considered a "positive" result, which may lead to discipline or termination.

The moral of the story is that, as of today, employees may be terminated for the use of marijuana even if a state has legalized the drug. Employers must, however, have adequate drug testing policies that address all possible scenarios (preemployment, random, or reasonable suspicion) and put the employees on notice that their actions may lead to disciplinary action, up to and including termination of employment.

Americans With Disabilities Act

The other big issue that arises with regard to the use of legalized marijuana pertains to the interaction with the Americans With Disabilities Act (ADA).

As indicated above, an employer may still conduct drug testing and terminate an employee for violating its drug and alcohol policy, regardless of the state's position on marijuana. What happens, however, when an employee has medical documentation that permits or requires the use of marijuana for the treatment of a medical condition? Must an employer now permit the employee to smoke marijuana at the workplace or disregard a positive test?

By way of background, the ADA prevents an employer from subjecting an employee to discrimination on the basis of his or her actual or perceived disability. In order to establish a cause of action for disability discrimination under ADA, a plaintiff must demonstrate that he or she: 1) has a disability, 2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer, and 3) has suffered an adverse employment decision as a result of discrimination.

The ADA further requires an employer to provide an employee with a "reasonable accommodation" and engage in the "interactive process" of determining whether such an accommodation is possible. The interactive process generally breaks down into two steps: 1) providing adequate notice to the employer, followed by 2) interactive communication between the employer and employee.

Once an employee notifies the employer of the need for an accommodation for a disability, the employer must communicate with the employee and solicit whatever information is necessary to determine if a suitable accommodation is possible. An employer is not, however, required to accommodate an "illegal activity" under the ADA.

Under the ADA, current drug users are not afforded the protections provided by the Act. For example, if an employee comes to work under the influence of drugs or alcohol, an employer is permitted to terminate the employee. (Conversely, under the ADA, "recovering" drug addicts or alcoholics are provided with protections. As such, if an employee requests time off to attend rehab, an employer is generally required to provide such a "reasonable accommodation" under the law.)

As noted above, under federal law, marijuana remains an illegal drug and, therefore, the use of marijuana constitutes an illegal act. Because the use of marijuana remains "illegal" under federal law, an employer is not required to accommodate employees who request the use of marijuana, regardless of the law of the state. To date, no court has found in favor of an employee who has been terminated for using medical marijuana, regardless of the state law. The courts have based these determinations on the theory that, until the federal government changes its perception of marijuana, or the ADA is amended, an employer is not required to permit the use of the "illegal" drug or accommodate those who engage in its use.

Recommendations

Based upon the foregoing, it is recommended that employers review the current status of their state law pertaining to the legalization of marijuana. Employers should also review and revise their current drug and alcohol policy to ensure that it is in compliance with the law.

Employees, interns, and applicants must also be mindful of the applicable laws and policies of the employer or potential employer. Showing up to the workplace and claiming that "it's legal" is generally not going to constitute a defense to a positive test.