The Federal and State Marijuana Conundrum

By Jennifer Sims

The first recorded account of marijuana usage for medicinal purposes is traced back to Emperor Shen Neng of China in 2737 B.C. From there, the drug’s popularity as a medicine spread throughout the eastern hemisphere. But states within the United States have been slow to follow suit, with California being the first to legalize medical marijuana in 1996.

Today, twenty-nine states have comprehensive medical marijuana programs, and many others allow the use of cannabidiol, the non-psychoactive component of cannabis which contains no THC. Federal law, however, still prohibits the use of marijuana, even where it is allowable under state law. Along with the likes of heroin and ecstasy, marijuana remains on the list of Schedule 1 drugs under the Federal Controlled Substances Act, despite recent efforts to declassify it. This listing essentially means that Congress has decided that marijuana has no medicinal value.

The use of cannabis for medical purposes presents significant challenges to employers, particularly in those states where marijuana use for medicinal purposes is legal. Not only must employers be concerned with how the use of medical marijuana reconciles with their drug testing and drug-free workplace policies, they must also ensure their compliance with both federal and state laws, even when those laws may seemingly conflict with one another.

The Americans with Disabilities Act (ADA), a federal statute, prohibits employers from discriminating against a person on the basis of disability “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” The ADA generally does not afford protection to persons engaged in illegal drug use.

The ADA outlines steps that an employer may take with respect to illicit drug use without violating the ADA. Employers may engage in drug testing in order to ensure that persons who have previously participated in drug rehabilitation programs are no longer engaging in the illegal use of drugs. Employers may prohibit the illegal use of drugs at the workplace. Employers may also hold an employee who engages in the illegal use of drugs to the same qualification standards for employment or job performance and behavior that the entity holds other employees, even if the unsatisfactory performance or behavior is related to the employee’s drug use.

Given the prohibition against marijuana use under federal law and these rights under the ADA, an employer who adheres to the ADA should be shielded from liability for terminating an employee who uses medical marijuana, right? After all, the United States Constitution provides that “the Laws of the United States . . . shall be the supreme Law of the Land . . .”

Consider the following circumstance:

Employer recruits an individual, who, following state law, uses a synthetic form of marijuana for a diagnosed disorder from which she suffers. Employer and Applicant are located in a state that allows the use of medical marijuana and that bars employers from firing or refusing to hire an employee who uses medical marijuana. Employer, who has a zero tolerance approach to drug use, extends an offer of employment contingent upon Applicant passing a pre-employment drug test. Applicant notifies the employer that she uses medical marijuana, but only after work, such that she should never be impaired at work. Applicant takes the required pre-employment drug test and tests positive for cannabis. Employer rescinds Applicant’s job offer.

This very situation was recently litigated by a federal court in Connecticut. Noffsinger v. SSC Niantic Operating Co., 2017 WL 3401260 (D. Conn. Aug. 8, 2017). After the applicant filed suit against the prospective employer under Connecticut’s Palliative Use of Marijuana Act (PUMA), the prospective employer sought to have the case dismissed, arguing that three federal statutes, including the ADA, preempted PUMA. The court refused to dismiss the case, finding that the federal laws did not preempt PUMA and that the “ADA does not preclude the States from regulating employers who discriminate against employees who engage in the medicinal use of drugs in compliance with state law.”

In doing so, the court recognized several important principles for employers to consider. First, the ADA prohibits the use of drugs at the workplace. Because the ADA does not prohibit the use outside of the workplace, it likely was not meant to regulate non-workplace activity and does not prohibit the States from allowing such use. Second, though the ADA refers to and contemplates employers’ use of drug testing, it does so only to clarify that that drug testing is not a violation of the ADA. In other words, while the ADA does not prohibit drug testing of applicants or employees, it also does not encourage or authorize such testing. Finally, though the ADA allows employers to hold illegal drug users to the “same qualification standards” as non-drug using employees, the drug test itself is not a “qualification standard.”

The Noffsinger decision establishes that the employment of an illegal drug user is not prohibited by Federal law. If allowed to stand, it may have far-reaching consequences, including serving as persuasive guidance to other courts addressing the relationship between the ADA and state laws allowing for medicinal marijuana use.

In states where medicinal marijuana is legal, employers should also be cognizant of the extent to which they are required to accommodate an employee who uses cannabis for medical purposes. The ADA requires an employer to provide reasonable accommodations to any disabled employee so the employee can perform the essential duties of his job. A Massachusetts state court interpreting state discrimination law (and not the ADA) recently found that an employer’s obligation to provide a reasonable accommodation under Massachusetts law may extend to an employee’s off-site use of medical marijuana, even where federal law prohibits such use. In doing so, the court rejected the employer’s argument that the accommodation of medicinal marijuana usage was per se unreasonable because marijuana use is prohibited by federal law.

While there remains a great deal of uncertainty as to the interplay between the ADA and state medical marijuana laws, employers can be certain of a few things. Given the influx of states that have approved the use of medicinal marijuana, there will most certainly be an increase in litigation involving employees’ rights to use medical marijuana laws. In turn, it is likely that employers’ obligations will become clearer as more judicial decisions are rendered.

In this ever-evolving area of the law, employers are reminded that it is critical that they ensure compliance with both state and federal laws regarding disability discrimination, state laws regarding marijuana use, state drug testing laws, and state and federal leave laws.

Jennifer Sims, Of Counsel
The Kullman Firm – Columbus Office