This Wisdom of the Crowd (ACC member discussion) addresses the use of medical marijuana in the workplace, under US law. This resource was compiled from questions and responses posted on the forum of the Employment & Labor ACC Network.*
*(Permission was received from the ACC members quoted below prior to publishing their forum comments in this Wisdom of the Crowd resource.)
I'd like to understand best practices in managing personnel who are users of medical marijuana. If anyone has a process they are using, I would like to see sample forms or simply an explanation of your approach to this issue. The challenge we are facing is that we are required by customers to perform drug testing and marijuana stays in an applicant's system for an extended period of time. As a result, users may test positive and we have to manage that result against the applicable state law.
I have been considering a behavioral contract with such employees that sets out our expectations. For example, no possession, distribution or use of marijuana on the premises; no use of marijuana within XX hours of reporting to work; no working under the influence (how do you manage that for a remote worker?); and must continue to satisfy any essential functions of the job. I would also reiterate our position on reasonable suspicion testing if the individual appears to be impaired at work. To balance the document, we would likely reiterate the protections afforded the employee under applicable state or federal law.
If anyone has approached this issue, I would love to hear a strategy that properly balances the needs of the business against the applicable state law and the privacy issues raised by the ADA.
Wisdom of the Crowd:
- [W]hen in doubt, it's always helpful to turn to e.g. US-DOT http://www.dot.gov/odapc/medical-marijuana-noticei
We follow the principles stated in the US DOT notice that Laura attached. We terminate applicants and employees who test positive for marijuana regardless of whether they may be taking marijuana lawfully under state law for medical reasons. We are going to do this until a state legislature or court says otherwise. To my knowledge no state has said otherwise and this is not a violation of the ADA because the ADA does not protect current drug users. I just read that the Colorado Supreme Court is going to consider the wrongful termination question under the Colorado statute.ii
After California legalized medical marijuana, our Supreme Court considered and decided the issue in 2008.iii Under the California Supreme Court's ruling, an employer does not have to make an exception to its zero tolerance drug testing policy to allow for medical marijuana users.iv
I believe the previous commenters are correct about the general rule that employers may still ban use [of or] impairment related to marijuana in states that have legalized its use for medical or recreational purposes. One significant exception to this rule, though, is the law in Arizona, which specifically prohibits employers from discriminating against an employee based on the employee's status as a holder of a medical marijuana card or the employee's use of medical marijuana. Employers may still prohibit the use or possession of, or impairment by, marijuana on Company property or while working, but expressly cannot base a determination of impairment solely on the results of a drug test. So, if you"re looking at best practices outside Arizona, I believe the previous posts are correct. If you are looking at application of these laws within Arizona, you essentially have to include a robust analysis of the signs and symptoms of impairment, and you may need to apply an ADA accommodation-style analysis to determining what to do if an employee is a user of medical marijuana in a DOT-covered or otherwise safety-sensitive position.v
i Response from: Laura Vogel, Associate General Counsel, The Auto Club Group, Dearborn, MI (Employment & Labor eGroup, Jan. 27, 2014). ii Response from: Jeffrey A. Spector, Assistant General Counsel, Sodexo, Inc., Gaithersburg MD (Employment & Labor eGroup, Jan. 29, 2014). iii The California case is Ross v. RagingWire Telecomms. Inc., 42 Cal. 4th 920, 70 Cal. Rptr. 3d 382, 174 P.3d 200 (2008). iv Response from: Olga Balderama, Vice President General Counsel, Ruiz Food Products, Inc., Dinuba CA (Employment & Labor eGroup, Jan. 30, 2014). v Response from: Kristin Page-Iverson, Senior Attorney, Tucson Electric Power Co., Tucson, AZ (Employment & Labor eGroup, Jan. 31, 2014).