This may not be Magic vs. Bird or Biggie vs. Tupac. Those battles are too close to call.
But, if I were to ask you which side of the country, east coast or west coast, would offer greater judicial support for the employment rights of medicinal-marijuana cardholders, you’d say west for sure, right?
And you’d be wrong…
While Washington and California have given the back of the hand to any duty an employer may have to accommodate an employee’s off-duty use of medical marijuana, across the country, we’ve seen the polar opposite in recent months.
In May, a Rhode Island court held that an employer could not discriminate against an employee based on her status as a medicinal marijuana cardholder. Last month, a Massachusetts court went one step further and held that its employers have a duty to accommodate an employee’s use of medicinal marijuana, albeit not at work unless it would create an undue hardship.
And, on Tuesday, a Connecticut federal judge held (here) that federal law (Controlled Substances Act, Americans with Disabilities Act, and Food, Drug, and Cosmetic Act) does not preclude enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes.
Actually, it’s not just an east coast thing. Six other States besides Connecticut and Rhode Island have passed medical marijuana laws that include explicit antidiscrimination protections from adverse employment actions. They are Arizona, Delaware, Illinois, Maine, Minnesota, Nevada, and New York.
Answering your questions about marijuana in the workplace.
Last week, before presenting a conference general session entitled “Marijuana in the Workplace: Don’t Get Caught Unprepared,“ I asked you guys, “What would you like to know about the law on employee use of medicinal marijuana?”
The responses generally fell into four buckets, each of which I’ll dip into now:
- Must we accommodate an employee’s use of marijuana at work? Heck no. Never. Furthermore, if an employee using medicinal marijuana shows up high to work, you can apply your drug testing rules. But, that begs question #2…
- If a medicinal marijuana user tests positive for marijuana, how do we tell if he or she is inebriated at work? Talk to the company that does your drug testing. Additionally, managers should be trained on reasonable cannabis suspicion at the workplace and how to document that.
- Our state has very generous off-duty conduct laws, and medicinal marijuana is legal under state law, do those off-duty conduct laws mean we can’t terminate an employee for off-duty use. The off-duty conduct laws probably won’t impede you. That’s because, under federal law, Schedule One drugs like marijuana are unlawful.
- What if I work in a federally-regulated industry requiring employees to remain free of Schedule One drugs like marijuana? Then that’s a job requirement and there is no duty to accommodate by allowing the employee to use medicinal marijuana. However, depending on the state, there may be a duty to explore another form of accommodation; that is, a transfer into another open position for which the employee is qualified.