An expert looks at how the use of legally prescribed marijuana in some states is affected by federal laws, including positions taken by the Justice Department, Occupational Safety and Health Administration, Department of Transportation and others.
This article accompanies Weed at Work.
As an increasing number of states enact, or are considering enacting, medical-marijuana legislation, employers are being forced to ponder what responsibilities they may have with respect to medical-marijuana users in their workforces, and the individuals who work side-by-side with them.
The confusion among employers in these states increased last fall when the U.S. Department of Justice issued guidelines announcing that the Justice Department, for the time being, will not enforce the Controlled Substances Act that classifies marijuana as a Schedule I substance and criminalizes its use.
The DOJ's guidelines were immediately hailed by medical-marijuana users, activists and civil libertarians as a welcome relief from the Bush administration's policy of zero tolerance for medical use of marijuana. Despite the federal government's change in policy, however, employers in states with medical-marijuana laws must continue to exercise caution in addressing employment issues that arise in connection with medical-marijuana users in the workforce.
The DOJ's decision to refrain from criminal prosecution of such use does not necessarily relieve employers from their obligations to address the potential dangers that may be associated with use of medical marijuana by their employees.
First, it must be understood that rather than granting medical-marijuana users, including those in the workforce, carte blanche to engage in the medical use of marijuana, the DOJ guidelines can be read as simply aimed at addressing the shortfall of resources that are available to the federal government in its War on Drugs.
The guidelines provide that the DOJ "should not focus federal resources ... on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." According to the guidelines, "prosecution of individuals ... who use marijuana as part of a recommended treatment regimen consistent with applicable state law ... is unlikely to be an efficient use of limited federal resources."
However, despite advising that medical-marijuana users in states that have legalized marijuana's medical use will not be sought out for prosecution, the DOJ guidelines do not go so far as to decriminalize its use under federal law.
To the contrary, the guidelines emphasize that they do "not alter in any way the Department's authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property."
Further, the DOJ guidance explicitly states that it "does not 'legalize' marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights ... enforceable by any individual ... in any administrative, civil, or criminal matter."
The guidance further warns that even "clear and unambiguous compliance with state law" does not "create a legal defense to a violation of the Controlled Substances Act." Instead, the guideline "is intended solely as a guide to the exercise of investigative and prosecutorial discretion."
Accordingly, there is nothing in the DOJ's recent policy pronouncement that requires employers to turn a blind eye to medical-marijuana use by members of their workforce. Indeed, despite what some might consider a softening of the federal government's position toward medical-marijuana use, a number of federal laws and regulations limiting the unchecked use of marijuana in the workplace are still on the books and should be carefully considered by employers in states that have enacted medical-marijuana laws.
For example, U.S. Department of Transportation regulations, pursuant to the Omnibus Transportation Employee Testing Act of 1991, require transportation-industry employers that have employees in "safety-sensitive" positions, such as pilots, school-bus drivers, truck drivers, train engineers, subway operators, aircraft-maintenance personnel, armed transit-security personnel and others, to have drug-free workplace programs that include both drug and alcohol testing.
These regulations are unaffected by the DOJ guidelines.
Indeed, the DOT issued its own policy statement on Oct. 22, 2009, regarding medical use of marijuana in response to numerous inquiries it received following the DOJ's guidelines on criminal federal prosecutions. In the DOT's statement, the agency made it abundantly "clear that the DOJ guidelines will have no bearing on the Department of Transportation's regulated drug testing program."
According to the DOT's policy statement, DOT regulations do "not authorize 'medical-marijuana' under a state law to be a valid medical explanation for a transportation employee's positive drug-test result." The DOT further emphasized that "[i]t remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use marijuana."
Employers must also consider their obligations under the federal Occupational Safety and Health Act, which imposes a general duty to maintain a safe workplace. This duty, which is set forth in what is commonly referred to as the Act's General Duty Clause, provides that each employer covered by the Act must "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
The U.S. Department of Labor's Occupational Safety and Health Administration website reports that "between 10 and 20 percent of the nation's workers who die on the job test positive for alcohol or other drugs" and that "impairment by drug or alcohol use can constitute an avoidable workplace hazard."
It is the position of OSHA that "drug-free workplace programs can help improve worker safety and health" and are "natural compliments to other initiatives that help ensure safe and healthy workplaces."
Although not mandated by law, OSHA "strongly supports comprehensive drug-free workforce programs, especially within certain workplace environments, such as those involving safety-sensitive duties like operating machinery." (1998 OSHA Advisory Letter, Enforcement Programs)
While OSHA supports workplace drug and alcohol programs, however, it does not currently maintain a standard applicable to such programs.
Nevertheless, failure to maintain such programs could be found to constitute a violation of OSHA's General Duty Clause where the following four factors are found to exist: (1) the employer failed to keep its workplace free of a "hazard;" (2) the hazard was "recognized" either by the employer or by the employer's industry generally; (3) the recognized hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible means available that would eliminate or materially reduce the hazard.
Employers should also be mindful of potential obligations under the Drug-Free Workplace Act of 1988, which requires some federal contractors and all federal grantees to agree to provide drug-free workplaces as a precondition of receiving a contract or grant from a federal agency.
While the Act does not require drug testing, a number of federal agencies (including the Department of Defense, Department of Energy, Nuclear Regulatory Commission and National Aeronautics and Space Administration) have issued regulations that require federal contractors, grantees and licensees to maintain fitness-for-duty requirements or drug-free workplace programs that do include drug testing.
For the time-being, at least, federal laws and regulations governing drug-free workplaces and drug-testing will likely take precedence over any rights under state laws permitting possession or use of medical-marijuana, especially to the extent that safety-sensitive positions within the workplace are impacted.
Any employer operating in a state that has enacted legislation legalizing the possession and use of medical-marijuana should therefore consider not only the state's law, but also the many federal laws, regulations and policy statements in determining the best course of action when presented with an employee or applicant who claims the right to use medical marijuana under the state's medical-marijuana statute.
Bernice McReynolds is a shareholder at Vercruysse Murray & Calzone in Bingham Farms, Mich. She advises and represents employers in both the private and public sector, focusing primarily on labor law and employment litigation. McReynolds also represents employers in labor arbitrations and in administrative proceedings before the Michigan Employment Relations Commission, the National Labor Relations Board, the Equal Employment Opportunity Commission and the Michigan Department of Civil Rights.