As more states legalize and decriminalize adult use and medicinal use of cannabis, employer rights vary widely regarding employee use of medical and adult use cannabis. Here’s what employers should consider when forming workplace policies.
New York’s Marijuana Regulation and Taxation Act amended Section 201-D of the New York Labor Law to clarify that cannabis used in accordance with New York state law is a legal consumable product.
As such, employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.
In Noffsinger v. SSC Niantic Operating Co. LLC, a plaintiff brought suit after she was refused a job due to her valid use of medical marijuana.
The US District Court for the District of Connecticut noted that the plaintiff was a prospective employee of the defendant who had been diagnosed with posttraumatic stress disorder and who was a qualifying patient under Connecticut’s Palliative Use of Marijuana Act.
The plaintiff brought an employment discrimination action in state court against the defendant alleging denial of employment based on a positive cannabis result during a pre-employment screening test in violation of PUMA.
The defendant removed the case to federal court and moved to dismiss the plaintiff’s entire case for failure to state a claim.
There were very important holdings in this case—one of the first of its kind. The federal district court held the following as a matter of first impression:
- The Controlled Substances Act did not preempt the PUMA provision prohibiting employers from discriminating against authorized persons who use medicinal marijuana
- The Americans with Disability Act did not preempt PUMA’s anti-discrimination employment provision
- The Food, Drug, and Cosmetic Act did not preempt PUMA’s anti-discrimination employment provision
- PUMA’s anti-discrimination provision contained an implied private right of action
- The prospective employer was not exempt from PUMA’s anti-discrimination employment provision
- PUMA’s anti-discrimination employment provision does not violate the Equal Protection Clause
- The plaintiff stated claim of negligent infliction of emotional distress under Connecticut law
Massachusetts and Oregon
In Barbuto v. Advantage Sales and Marketing, the Massachusetts Supreme Court concluded that a plaintiff may seek a remedy through claims of handicap discrimination in violation of Massachusetts General Law chapter 151B after an employee was terminated from her employment because she tested positive for marijuana following her lawful medical use of the drug.
Other states have gone in the opposite direction, showing that attitudes have not changed everywhere.
In 2010, the Supreme Court of Oregon heard an appeal from an employer who terminated an employee for his use of medical marijuana. The employee brought suit alleging the employer engaged in disability discrimination. The Supreme Court of Oregon disagreed.
In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the plaintiff stated he suffered from a variety of debilitating medical issues for more than 10 years. He eventually obtained a registry identification card under the Oregon Medical Marijuana Act.
Despite having lawfully obtained a registry identification card under Oregon’s laws, the Supreme Court ultimately held that under Oregon’s employment discrimination laws, the plaintiff’s employer was not required to accommodate employee’s use of medical marijuana. This case remains good law in Oregon.
Missouri recently passed Amendment Three, which legalized adult recreational use of cannabis. The amendment’s passage and its terms are fairly straightforward. It does not prohibit Missouri employers from having policies restricting marijuana use or intoxication in the workplace.
Employers also may prohibit and/or take adverse action against an employee for working while under the influence of marijuana during work hours.
However, one of the more important aspects of Amendment Three’s passage is its new and enhanced protections for marijuana users with valid medical marijuana cards.
Missouri recognized the legal medical use of marijuana in 2018. Amendment Three’s employment protections prohibit employers from discriminating against or taking adverse action against an employee with a valid medical marijuana patient ID card for offsite use of medical marijuana during non-working hours—or for simply testing positive for marijuana in an employer administered drug test.
There are certain exceptions, such as the protections being inapplicable to trucking companies who would run afoul of Department of Transportation regulations. The protections also do not apply if the employee used, possessed, or was under the influence of medical marijuana at work or during the hours of employment.
How should companies prepare as more states legalize adult and medical use of cannabis? First, if a company terminates an employee based on medical marijuana use, employment discrimination lawsuits will most likely be raised.
The harder question to answer will be when an employer terminates an employee for working while “under the influence” of marijuana.
The problem? How will employers establish what “under the influence” means? There is currently no testing that quantifies what constitutes “under the influence,” as with alcohol testing. Employers and employees alike should be aware of this problem.
Overall, legalization of medical and adult use cannabis in more states is undoubtedly a good thing for thousands of individuals suffering from a variety of medical issues or who prefer its use to alcohol.
However, both employers and employees must be aware of looming controversies that are likely to occur due to an individual’s use of the drug. Honest and open communication between employers and employees is the first step, along with knowledge of existing state laws.
Regardless of these efforts, employers must be cognizant of prior court rulings in both their state and other states, and work with their teams to craft thoughtful policies to address employee use of medical and recreational cannabis in a way that protects everyone involved.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Adam R. Dolan is a litigation partner at Gfeller Laurie. He manages catastrophic transportation, general liability and products liability matters, as well as federal civil rights claims, dram shop actions and subrogation.