ATTENTION EMPLOYERS: ACCOMMODATING MARIJUANA USE IS A CLOUDY ISSUE

KATARINA KLENNER
The Americans with Disabilities Act doesn’t protect employees or applicants who currently use “illegal” drugs when an employer takes adverse action based on drug use. Courts have said the ADA defines “illegal drug use” by reference to the federal Controlled Substances Act, which classifies marijuana as a Schedule I illegal narcotic.

State laws that authorize medical marijuana use directly conflict with federal disability discrimination laws and parallel state statutes, rendering employers’ legal obligations to individuals with disabilities unclear. Employees who seek permission to use medical marijuana as an accommodation for a disability may have accommodation rights under state medical marijuana statutes but no accommodation rights under disability laws. 

Rachel Atterberry, partner in the Labor and Employment Practice at Freeborn & Peters LLP, in an interview with Bloomberg BNA explores the interplay between medical marijuana and disability laws and recent court decisions discussing employment issues.

Bloomberg BNA: Which jurisdictions not only have decriminalized medical marijuana use but also may require workplace accommodation for registered individuals?
 
Atterberry: Currently 23 states, and the District of Columbia, have decriminalized medical marijuana. Other states have legislation in the pipeline. And, some states, such as Arizona, Connecticut, Delaware, Illinois, Maine, Nevada, New York and Minnesota, require accommodations for registered medical marijuana users.

Bloomberg BNA: On the accommodation issue, how do these state laws or their implementing regulations generally define employers’ obligation to accommodate medical marijuana use?
 
Atterberry: For states that have an accommodation clause as part of their medical marijuana statutes, generally an employer isn’t allowed to engage in status-based discrimination. In other words, the employer can’t take an adverse action against the employee simply because of her participation in a recognized medical marijuana program.
 
In such states, an employer needs to consider the specific needs of the job, as well as any competing regulations that may apply, in considering an employee’s use of medical marijuana. 
For instance, Department of Transportation regulations don’t permit the use of marijuana. The situation often arises in the context of zero-tolerance drug tests and the need to make an accommodation of medical marijuana users in those states where it is legal and where the statute includes an accommodation clause.

Bloomberg BNA: Do any of the laws address how an employer should respond to requests for use off-site, during breaks, or while working from home?

Atterberry: Again, an employer in a state that has an accommodation clause needs to consider the specific requirements of that state. Generally speaking, an employer doesn’t have to allow for an employee to be actively under the influence while at work. 

But, an accommodation may be necessary in specific situations—even apart from the exception to a zero-tolerance policy. This accommodation would depend on the nature of the job and the safety and other sensitivities of the position. I could certainly foresee a situation in the “accommodation” states where work hours may need to be adjusted to allow for the use of medical marijuana in off-hours.

Bloomberg BNA: The Colorado Supreme Court in Coats v. Dish Network LLC, 350 P.3d 849, 31 AD Cases 1289, 2015 BL 187839 (Colo. 2015), held that the state’s lawful activities statute doesn’t protect a quadriplegic worker’s off-duty use of medical marijuana because the activity isn’t lawful under both state and federal law.
As to states that have authorized medical marijuana use, what does this decision tell employees about using lawful activities statutes as a basis to challenge employers’ termination decisions?

Atterberry: Many in the medical marijuana community felt that the outcome in Coats highlights the ne for further reforms concerning the use of medical marijuana and protections for those registered users. While I think that as the law currently stands, Coats provides a cautionary tale to employees, I anticipate legislative reforms to help address the confusion created in the wake of the Coats decision.

Bloomberg BNA: What does the Colorado decision tell employers with zero-tolerance drug policies about firing employees who are licensed to use medical marijuana and test positive based on off-duty drug use? Have there been any pro-employee court decisions under similar facts?

Atterberry: Again, I would suggest that you need to consider your particular state statute and any accommodation clause that the statute may have. While the legal outcomes generally have been on the pro-employer side, I anticipate that more states will add accommodation clauses and that with those clauses, we may see more employee-friendly decisions.

Bloomberg BNA: As the law evolves, what general advice would you give to employers revisiting disability accommodation, workplace safety and drug policies?

Atterberry: First, as an employer, know your state(s) laws and what they have to say regarding medical marijuana—is it legal? Is an accommodation required?  
Second, despite the pro-employer decisions that we have seen, I would still caution employers to be careful in their administration of zero-tolerance policies and testing. Before an automatic termination based on the test results, inquire as to whether there is a medically-authorized reason why the employee may have tested positive.

And, consider the nature of the position at issue and any exemptions that may apply, e.g., DOT, safety sensitive positions. 
But, once you as the employer are provided notification that an employee is a medical marijuana user, be careful what you do with that information and how far you go in asking for information. At this point in the game, you now likely know that the employee is either “disabled” under the ADA or similar state statutes and/or has a serious health condition. As a result, you need to be careful in all future decision-making concerning that employee. 

At the end of the day, while you as the employer may be required to make an accommodation (only in certain states) or simply elect to do so, remember that you don’t have to allow an employee to perform his duties when he is obviously under the influence of marijuana.