You may have seen the news that the City of Atlanta recently passed an ordinance decriminalizing the possession of less than one ounce of marijuana. Individuals found in possession of such small amounts of marijuana will now be fined $75 and face no jail time. Earlier this year, Georgia enacted a law expanding the qualifying medical conditions for which cannabis oil may be legally used. Now individuals with certain health conditions (including seizure disorders, Crohn’s disease, Multiple Sclerosis, Parkinson’s, Sickle Cell, cancer, Alzheimer’s, AIDS, Autism, and Tourette’s Syndrome) may possess twenty ounces of cannabis oil with up to a 5% THC level with doctor’s approval. While Georgia (and most of its Southeastern neighbors) remains far from legalizing marijuana for medicinal or recreational purposes, these two recent legal changes reflect a national trend towards marijuana that can create a problem for many employers.
Currently, 28 states and Washington D.C. have legalized marijuana for medical purposes and 8 states (Nevada, Colorado, California, Maine, Massachusetts, Oregon, and Washington) and Washington D.C. have legalized marijuana for recreational use. However, since marijuana remains a Schedule 1 controlled substance under the federal Controlled Substances Act, possession of marijuana is still illegal under federal law, prescription or not.
Courts have begun to address whether an employee’s use of medical marijuana can be a reasonable accommodation under the Americans with Disabilities Act and similar state laws. In 2015, the Colorado Supreme Court held that an employer did not commit disability discrimination when it terminated an employee for violating its drug policy (testing positive for marijuana) despite the employee’s doctor’s prescription for medical marijuana. The Court reasoned that because marijuana was still illegal under federal law, the employer did not discriminate based on disability by enforcing its drug policy. Similarly, the Washington Supreme Court held that an employer’s revocation of a job offer based on the applicant’s positive result for marijuana on a drug test was not wrongful despite the Washington State Medical Use of Marijuana Act. The Supreme Court of California has likewise held that the California Fair Employment and Housing Act does not require an employer to accommodate employees who used medical marijuana by ignoring positive drug test results for the drug that violate employer drug policies.
More recently, however, in July 2017, the Massachusetts Supreme Court held that an employer may have to ignore an employee’s drug test failure due to the use of marijuana to treat a qualified disability because it may be a reasonable accommodation under the state’s anti-disability discrimination law. In Barbuto v. Advantage Sales and Marketing LLC, the employee had Crohn’s disease and a physician provided her with written certification that allowed her to use marijuana for medicinal purposes. The employee did not use marijuana before or at work, but nonetheless tested positive for marijuana on the employer’s mandatory drug test. The Court held that employers in the state had a duty to engage in an interactive process to determine whether there are equally effective medical alternatives that would not violate a drug policy. If no alternative exists, the employer must demonstrate that allowing the employee’s use of medical marijuana (or the positive drug screen for the drug) would cause it an undue hardship, such as transportation employees subject to the DOT, federal contractors and recipients of federal grants, or other employers where allowing positive drug tests for marijuana would be a violation of the employer’s contractual or statutory obligations which would jeopardize the company’s ability to perform its business.
While the laws regarding marijuana (and especially its presence in the workplace through a positive drug test) is jurisdiction dependent there are a few general points for employers to consider. First, to the extent employers work with the federal government or have employees subject to federal regulations, marijuana use of any kind is still off-limits. It is also helpful for all employers to explicitly list marijuana as a drug covered by its drug use policies so that employees and applicants understand expectations. However, until the current conflicts between state (or local) and federal laws are resolved, employers need to keep apprised of news laws and interpretations of existing efforts to permit marijuana use, both medically and recreationally where they may have employees living and working.