11 Mar What Do Employers Need to Know about Medical Marijuana?
At the firm we often conduct research on multi-state operations. We happen to have a client who has multiple employees working from offices in different states, which represents a challenge when you’re dealing with cutting edge legal and policy matters.
This year, one of the most cutting-edge policies has to do with medical marijuana and employment law.
Recently I was reading a post by one of my favorite employment law bloggers Eric Meyer (The Employment Handbook Blog). Eric was talking about a recent case out of Arizona dealing with the Arizona Medical Marijuana Act. Many states have enacted medical marijuana laws that prohibit companies from discriminating against a qualifying employee’s positive drug test for marijuana components or metabolites. That often runs counter to zero-tolerance policies for being under the influence of alcohol or drugs while working. While I believe it to be a very good idea to not have employees on the clock who are stoned, drunk, or otherwise under the influence of drugs or alcohol, zero-tolerance polies can possibly lead you to some very difficult circumstances, which are what this employer out of Arizona had to deal with.
The case was heard in Arizona Federal District Court. The Plaintiff was a woman who had a medical marijuana card which was distributed by the state of Arizona. She used marijuana to help her with her arthritis and to help her sleep, but she did not need an accommodation under the American Disabilities Act because she was able to perform her job, so she did not tell her employer about her medical marijuana card.
As often happens, an accident happened at the workplace and she was tested for drugs. The test showed that she had marijuana metabolites in her system at pretty high levels. The employer then fired her for being high at work. The problem was that they did not have concrete evidence that she was high at work; the employer only had a subjective belief that she was high at work. The judge in the case thought that they ignored the concepts outlined in the Arizona Medical Marijuana Law and found for the plaintiff.
Here’s the problem: how can you tell if somebody is high at work? How can you tell if somebody is drunk at work? There are some alcoholics who are functioning alcoholics. Some functional alcoholics may operate better while drunk. Sometimes I find it hard to believe, but the science tells me so.
The difficulty that employers are facing are outlined in these three factors:
1. If you operate in a multi-state environment, you need to know the laws of the states in which you operate.
Make sure that neither your employee handbook nor your management violates those laws. The American Disabilities Act does not say that marijuana use is protected, but often people who are using marijuana will have a qualifying disability, wherein the employer is obligated to conduct an interactive dialogue if some type of accommodation is required for the underlying disability. The employer is not required in most cases to allow the employee to use medical marijuana while working. But, they do have to address the case of what happens if an employee tests positive for marijuana, and if they are regularly using medical marijuana they will at some point.
2. You need to learn the signs of medical marijuana use and abuse.
To be honest, I don’t know enough about marijuana use. I was in too much fear of my father not letting me play soccer as a kid, that I didn’t try marijuana or cigarettes as a kid. So consult some experts, such as doctors, addiction counselors, even police departments may have some experts that you can consult to help you with some quick and easily administered tests or observations to determine if someone is high or drunk.
3. Employers need to have an understanding of the intersection between the medical marijuana use and the recreational use.
Employers need to understand the intersection between the medical marijuana use and the recreational use. There are some states that have approved recreational use (for those of us in the Mid-Atlantic region, it is permitted in D.C.). There is a difference between medical use and personal recreation use. It is important for employers to understand that difference. What complicates things for employers, particularly for small businesses in places like the Mid-Atlantic with many states nearby, is that each state is determining what there law is and will be in the future. Marijuana is still a ban substance under federal law. A lot of legislation is being considered right now as state legislatures are in session, and it is something that employers must keep an eye on.
If you are particularly interested in this, I can’t recommend enough Eric Meyer’s blog to stay informed on employment law matters with a side of snark.