Medical marijuana is casting a cloud of confusion over Corporate America.
Indeed, employers that operate in the 14 states where pot is now legal as a prescription painkiller are struggling to reconcile zero tolerance drug policies with a patient’s right to get high.
The matter is more complicated than it sounds.
Legal Ps & Qs of THC
Human resources managers, for example, are grappling with such questions as whether random drug tests constitute discrimination under the Americans with Disabilities Act, what they are legally allowed to ask job candidates and whether they are required to accommodate after-hours and offsite use of medical marijuana.
“It’s throwing employers for a loop because many have policies in place where testing positive for THC, or Tetrahydrocannabinol (the active ingredient in pot) requires the employee to be terminated or to participate in some sort of treatment program even if it’s not necessary,” says Alison Holcomb, an attorney for the American Civil Liberties Union, ACLU, in Washington.
In the private sector, at least, companies that are inclined to do so could simply change their drug testing policies, but those that receive federal contracts are required to prohibit the use of marijuana as a condition of participation under the Drug-Free Workplace Act of 1988.
The federal Department of Transportation also issued new guidelines last year that prohibit the use of medical marijuana for transportation workers in safety-sensitive jobs including pilots, school bus drivers, truck drivers, subway operators, ship captains, and transit fire-armed security, even in states where it is legal.
And employers in all sectors have a “general duty” to provide a safe work environment under the Occupational Safety and Health Administration, OSHA, which some suggest is reason enough to terminate workers who test positive for THC.
Then, of course, there’s liability to consider.
Say an employee comes to work under the influence (of any substance) and gets into a car accident or makes a critical mistake with a customer. It’s the employer who gets sued.
"It really boils down to this: An employer's right to maintain a drug-free workplace is critical," says Denise Davis, a spokeswoman for the California Chamber of Commerce. "It protects the safety of all workers and limits exposure to potentially costly litigation."
The Law: A Moving Target
The landmark 2008 Supreme Court ruling in California, involving a systems administrator who was fired by Sacramento-based RagingWire Telecommunication (now known as RagingWire Enterprise Soutions) for using medical marijuana, offers the most definitive guidance for employers thus far.
The court ruled that drug testing in the state was legal, that firing an employee for use of medical marijuana was not tantamount to discrimination and that employers are not obligated to accommodate the use of medical marijuana—even outside the workplace.
In other words, while the state’s medical marijuana laws protect patients from criminal prosecution, it provides no protection on the job.
After all, pot remains classified as an illegal substance under federal law.
“The California Supreme Court gave carte blanche for employers to discriminate against medical marijuana patients,” says Joe Elford, legal counsel for Americans for Safe Access, a medical marijuana advocacy group.
But the door remains open for less rigid interpretation.
At present, seven medical marijuana states have implicit employee protections in place, where the law mentions only on-the-job consumption or impairment as grounds for termination—Colorado, Hawaii, Michigan, Montana, New Jersey, New Mexico and Vermont.
Two others, Rhode Island and Maine, have explicit protections for medical marijuana patients written into their legislation.
For example, the 2006 legislative bill that legalized the use of medical marijuana in Rhode Island states that “no school, employer or landlord may refuse to enroll, employ or lease to or otherwise penalize a person solely for his or her status as a card holder” (of medical marijuana).
Thus far, however, none have been tested in court.
More Challenges Ahead
More recently, the Washington state Supreme Court also agreed to review a case in which a customer service consultant was fired for her legal, at-home use of marijuana for medicinal purposes.
According to the lawsuit, the employee disclosed her use of marijuana during the hiring process and provided the company a copy of her physician’s authorization, but was fired during a pre-employment drug screen when she tested positive for THC.
“We’re arguing that firing that patient is a violation of public policy because it enters the employer into the confidential physician-patient relationship,” says Holcomb. “Whether the patient decided to use marijuana, OxyContin, or an anti-depressant should be a private medical matter and unless the use of that medical treatment has an impact on her ability to do her job, or involves a safety issue, she should not be forced to choose between her doctor’s advice and earning a living.”
And earlier this year, discount giant Wal-mart Stores also fired a worker in Michigan for using cannabis to alleviate pain related to sinus cancer. The employee claims he never came to work high, but was fired after being tested for drugs.
“Arguably, Michigan’s law prevents discrimination of this kind, and it would seem this issue is ripe for litigation there as well,” says Kris Hermes, a spokesman for Americans for Safe Access.
As the courts continue to rule on medical marijuana in the workplace, companies will gain the guidance they need to create drug policies that protect both their business interests and the rights of their employees.
In the meantime, says Holcomb, human resources departments should tread carefully, contact their legal counsel and adhere to both federal and state laws regarding the use of pot.
“What I hope is that we’ll recognize we don’t want to force very ill people to decide they can’t avail themselves of this physician authorized treatment because they can’t afford to lose their job,” she says. “That’s just bad policy and I don’t think most employers want to support that.”