Do Employee Protections for Marijuana Use Exist Under the Law?

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Medical marijuana

Many employers in the United States are struggling to respond to an ever-changing legal framework surrounding marijuana use.

As more state populations and legislatures consider and approve the medical—and, in the case of Colorado and Washington, the recreational—use of marijuana, the fundamental question for many organizations is: do we need to accommodate our employees’ ability under their state laws to consume or possess marijuana?

Most States Don’t Address Employee Rights
Currently, 19 states and the District of Columbia have medical marijuana laws on the books, and most of these don’t specifically address an employee’s right to consume marijuana. Because most of these state statutes don’t directly reference marijuana in the employment context, there have been a number of lawsuits subsequently brought by individuals who claim their legal rights to consume medical marijuana were not honored by their employers, resulting in wrongful termination or other discriminatory actions.

Though the legal basis on which the lawsuits were brought varies fairly significantly, the decisions by the courts (including the supreme courts of California, Washington, Oregon, and Montana, the appellate court of Colorado, and the U.S. District Court for the Western District of Michigan) have been rather uniform.

To date, all courts have supported an employer’s right to take adverse action against a candidate or employee based on the presence of marijuana in a drug test, even if that individual is permitted to use marijuana in accordance with state law. These decisions have been based on two primary points:

  1. Marijuana is still classified as a Schedule 1 drug by the federal government.
  2. Marijuana use by employees could present safety concerns for an organization, and organizations can take steps to protect themselves from these risks.

States That Do Address Employee Rights
Currently, five states have provisions in their medical marijuana statutes that directly address issues of employment and provide some employee protection under the law:

  1. Arizona
  2. Connecticut
  3. Rhode Island
  4. Delaware
  5. Maine

Though all of these states’ laws address the rights of medical marijuana users and their employment status, there is some variation in their specific intent and application. Arizona, Connecticut, Maine, and Delaware seem to provide the broadest protections, while the language of the Rhode Island statute is somewhat vaguer and potentially gives employers more latitude (that is, until case law provides some clarification or interpretation).

Yet under all these laws, employers can take action on an employee possessing, using, or being impaired by marijuana while in the workplace or otherwise on the job.

Additionally, employers in these states that are subject to regulations by the U.S. Department of Transportation (DOT) or other federal agencies or have federal contracts, also have greater freedom to take adverse action against a candidate or employee using medical marijuana.

Similarly, for those organizations that have employees in safety-sensitive positions (e.g., operation of heavy machinery), they may also be able to exercise more liberal judgment in the application of these laws.

Recreational Marijuana & Employment
The recreational marijuana laws that were passed last November in Colorado and Washington have not yet produced the same volume of case law that would provide employers with clearer direction on how to treat individuals who test positive for marijuana.

That said, there is currently nothing in either statute that prohibits employers from taking adverse action against an applicant or employee for marijuana use. The likelihood that case law will side with individuals in such matters seems relatively low, since unlike medical marijuana cases, plaintiffs in these lawsuits cannot sue on the basis of disability discrimination or violations of public policy (as is typically done in medical marijuana cases).

Until these cases come to trial and reach a judgment, organizations in Colorado and Washington should most likely not be forced to accommodate recreational marijuana users.

Therefore, with few exceptions, the guidance stemming from both the regulatory and case law environment surrounding marijuana use has, with a few exceptions, been relatively clear and consistent—as long as cannabis remains illegal under federal law, organizations can usually take adverse employment action against a candidate or employee who tests positive for marijuana.

Yet, as the situation landscape continues to evolve, this ability may change as well. Organizations should pay close attention to clarifications from state legislatures, regulatory bodies, and case law in order to better ensure that their internal drug testing policies comply with future developments.

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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.