By Luther Wright, Jr.
Marijuana usage remains illegal on a federal level in the United States. However, over the last two decades, 33 states and Washington D.C. have approved of the use of medical marijuana, and 11 of those states and Washington D.C. have legalized its recreational use. Seventeen states currently have some type of statutory protection for medical marijuana users, with most of those states including protections against terminations in the workplace—and some jurisdictions have banned pre=employment testing for marijuana altogether. As the laws regarding marijuana have changed and proliferated, the tension between workplace safety concerns and legal marijuana usage have increased and are receiving more scrutiny. With additional states considering pro-marijuana laws and the states with current laws considering expanded protections for users, the issues for employers will only increase and become more complicated.
Medical Marijuana and Discrimination
Most of the 33 states with medical marijuana laws have expressly made it clear that legal users may not be discriminated against in the workplace. In the states that have not expressly addressed workplace discrimination by statute, courts have had to interpret the workplace implications of medical marijuana usage. The vast majority of courts considering these issues have held that medical marijuana laws themselves do not provide an independent basis for employment claims. However, these same courts have more recently found that in many instances, the medical marijuana user may be able to advance arguments under other laws based on the conditions medical marijuana was prescribed to address. The conditions have typically been chronic medical conditions that qualify as disabilities or handicaps under applicable state and federal laws. Significantly, no medical or recreational marijuana statutes have asserted, and no courts have found that employees have a right to use or possess marijuana on an Employer’s premises or that employees may report to work impaired. Instead, the primary issues arising for Employers in these cases have usually been two-fold—failure to hire based on pre-employment drug testing and termination of medical marijuana users after failed random drug tests in the workplace.
Regardless of the jurisdictions and regardless of whether marijuana usage is legal in that jurisdiction or not– Employers should be sure to make sure that they are following three critically important practices—1) Awareness of all applicable laws; 2) Robust review of pre-hire employment practices; and 3) A Review and update to Disability and Accommodation Practices.
Some Jurisdictions Ban Pre-employment Testing for Marijuana
First, Employers should make sure that they are up to date on the status of all local and State laws impacting their locations and in the habit of periodically reviewing the same. For example, Nevada has banned pre-employment testing for marijuana as of January 1, 2020 and New York City has statutorily banned all pre-employment drug tests for marijuana as of May 1, 2020–both with certain exceptions based on specific industries or safety concerns. In terms of exceptions, the Nevada ban does not apply to certain groups of employees (like first responders) and the New York City ban does not apply to those persons in jobs operating federally regulated vehicles, operating heavy machinery or in professions like law enforcement. Other jurisdictions are currently in the process of adopting or contemplating the same type or similar legislation. For these reasons, Employers must make sure that they are carefully and consistently reviewing the laws applicable to their locations from a State and local perspective. Employers should also be aware of the exemptions available to their industries and to those regarding specific types of jobs. A best practice is to make certain that marijuana laws in relevant jurisdictions are being reviewed at least every six months.
The Rationale for Drug-Testing and Robust Job Descriptions
Second, Employers should carefully review their hiring practices and policies regarding pre-employment drug testing. This process should begin with a consideration of the rationale for pre-employment drug testing in the first place. Employers should ask critical questions regarding whether the drug test is legally required, required by existing agreements (such as Collective Bargaining Agreements, federal contracts or workers’ compensation policies) or only should be required for certain types of jobs. Knowing the rationale for pre-employment drug testing will help define the parameters and thought processes for any necessary changes.
As part of this process, Employers should also perform a robust review of all job descriptions to ensure that safety sensitive positions are identified as such, and that safety aspects of all other jobs are expressly included within the job description. For instance, if jobs require the occasional operation of heavy machinery or require work in environments where quick reaction times to hazardous conditions are necessary, these requirements should be included in the job description. These safety requirements can then be timely disclosed to potential applicants and can be properly considered by the Employer and the job applicant in the hiring process. Applicants will then be able to thoughtfully consider these safety requirements when being asked if they can perform the essential functions of the job with or without a reasonable accommodation.
Additionally, Applicants should also be advised that questions about performing a job with or without a reasonable accommodation would also include accommodations made necessary because of any underlying disabling conditions and/or the treatment arising from those conditions. These revisions make a discussion of medical marijuana usage after an offer has been extended more likely. They will also help establish a good faith basis for asserting the importance of workplace safety concerns and/or forming the basis for an exemption from testing bans.
Refining the “Interactive Process”
Finally, Employers should review and update their disability and workplace accommodation policies to squarely address an employee’s disclosed usage of medical marijuana. Human Resources personnel must be trained that this issue should be reviewed using the familiar ADA “interactive process” rubric. Once the marijuana usage is disclosed—whether voluntarily, during pre-employment drug testing or during random drug testing—Employers should have discussion with employees regarding any potential accommodations. Those accommodations may range from consideration of other medications, to changes to an employee’s schedule to better accommodate treatment regiments or even a consideration of other positions that might be less safety sensitive. Courts considering these issues have tended to focus on the quality of the interactive process and less on the marijuana usage itself, which is why Employers are well advised to do the same.
Adhering all three of the principles discussed above is an Employer’s best approach to navigating the ever-changing world of marijuana usage laws.
Luther Wright, Jr., Of Counsel
Ogletree Deakins Nashville
[email protected]
www.ogletreedeakins.com