Marijuana in the Workplace

Along with alcohol and other drugs in the workplace, the advent of the legalization of medical and recreational marijuana in many states requires employers to face a variety of issues related to the use of marijuana by employees. The U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) estimated in 2013 that 9.1% of full-time workers have engaged in some type of illicit drug use within the preceding month. [i] Nearly half of small businesses don’t have a policy about cannabis use in the workplace and 10% have had employees show up under the influence of a controlled substance at work. The ramifications of marijuana and the workplace are far reaching. Multiple workplace issues are affected by legalization and some policies may butt up against state medical marijuana laws, the Americans with Disabilities Act (ADA) and reasonable accommodations. [ii] 

Illicit Drug Use And Workplace Accidents

According to a study reported by the National Institute on Drug Abuse (NIDA) employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries and 75% greater absenteeism compared to those who tested negative. There is a likely statistical association between illicit drug use (including marijuana) and workplace accidents. In 2013, it was alleged that marijuana use was a key factor in a heavy machinery accident that left 6 people dead.[iii] There is even some research that states that marijuana users have more Workers Compensation and unemployment insurance claims, more lawsuits, decreased productivity and higher turnover.

With respect to marijuana workplace drug testing, “studies show drug testing works; employees are three times less likely to produce a positive test result if they know they will be tested.” Because marijuana is still classified as a Schedule I controlled substance (although the DEA may lower its classification to Schedule II this summer), employees in federal drug testing programs are prohibited from using it. [iv] In all other workplace settings however, “…individual rights under state medical-marijuana laws and employers’ obligations under a number of state and federal employment laws appear to be headed for collision.”[v] There are some state medical marijuana laws that may require an employer to accommodate an employee and some that do not. For example, Connecticut, Illinois, Maine and Rhode Island, protect employees’ rights and safeguard against disciplinary action for medical marijuana use. [vi] Conversely, California, Montana and Washington have found in favor of employers, ruling that they can fire employees for using medical marijuana.

Lawful Activity Statutes?

In other states it gets more convoluted. Some states, including but not limited to, Illinois, Minnesota, Colorado, and Nevada, have “lawful products” or “lawful activities” statutes that protect employees’ rights to engage in lawful activities during non-working hours. That was an issue in Coats v. Dish Network [vii] where an employee was terminated for medical marijuana use and the termination was upheld by the Colorado Supreme Court irrespective of the lawful activities statute. The rationale was that marijuana was still illegal under federal law.  States that have legalized recreational or medical marijuana are following suit. The decisions in California (Ross v. Ragingwire Telecom, 42 Cal.4th 920, 2011), Oregon (Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, 230 P 3d 518, 2010), and Washington (Roe v. Teletech Customer Care Management LLC, 257 P.3d 586 (2011) each similarly determined that state laws exempting marijuana consumers from criminal liability do not provide employees with civil protections in the workplace.

Marijuana and Unemployment Insurance Benefits

Case law is also starting to develop in the areas of unemployment insurance benefits after termination for marijuana use, Workers’ Compensation benefits for marijuana use related to workplace injuries and wrongful termination and ADA claims. The Michigan Supreme Court permitted a worker to collect unemployment insurance benefits after he was terminated for using medical marijuana.  Last year, the New Mexico Court of Appeals decided that a person’s use of medical cannabis constitutes “reasonable and necessary care” and that such care ought to be reimbursed by employers in instances where it is used to treat injuries sustained while working. In James v. Costa Mesa, (700 F.3d 394, 397 (9th Cir. 2012), the Ninth Circuit has addressed the ADA issue, holding that the ADA does not protect individuals who use marijuana for medical purposes or require accommodation of such use. In Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, (230 P.3d 518, 535–36 (Or. 2010) (en banc), the Oregon Supreme Court held that, consistent with the ADA, employers have no obligation to reasonably accommodate an employee’s medical-marijuana use under Oregon’s disability-discrimination statute because marijuana is still considered an “illegal drug” under federal law.

Companies Need to Plan

Given the changing landscape related to marijuana and the workplace, employers need to address how state medical-marijuana laws will affect their workplace policies and procedures. They should be thinking about establishing pre-employment screening including polygraph testing, clear drug-testing and drug-free workplace policies, and trained managers that will enforce workplace policies. All of these policies and procedures should be evaluated to safeguard that they are in compliance with federal and state laws and appellate case decisions.

Footnotes:

[i] Results from the 2013 National Survey on Drug Use and Health: National Findings. United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration Office of Applied Studies; 28; 2014.  This is an increase from 2007 where it was estimated that 8.4% of full-time employees had used an illicit drug in the past month. See 2007 National Survey on Drug Use and Health: National Findings. United States Department of Human Services, Substance Abuse and Mental Health Services Administration Office of Applied Studies; 26; 2008.  

[ii] Within the context of illicit drug use in the workplace, cannabis has been a topic of increasing discussion in occupational medicine. (Medical Marijuana in the Workplace, A White Paper Prepared by the ACOEM {American College of Occupational and Environmental Medicine} Pharma and MRO Sections.

[iii] Ramchan, R, Pomeroy, A, and Arkes, J. The Effects of Substance Use on Workplace Injuries. Rand Center for Health and Safety in the Workplace.

[iv] Schabner, D and Margolin J. Excavator Operator Surrenders in Philadelphia Building Collapse. ABC News: June 8, 2013.

[v] Keefe, E. Advice for employers in states where medical marijuana is legal – relax!. UL, Knowledge at Work. 2013.  7 Stack, P and Suddath, C. A Brief History of Medical Marijuana. Time Magazine; October 21, 2009.

[vi] A Survey of Medical Marijuana Laws Impacting the Workplace

[vii] 303 P 3d 147 (2015)