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Legalized Marijuana: An HR Challenge

Given the growing public acceptance of medical marijuana – 18 states now have laws on the books regarding its use – HR leaders should be working with legal counsel to craft a company-specific, individualized approach to the divisive drug.

Friday, May 3, 2013
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The use of medical marijuana has presented a workplace policy conundrum for human resource professionals and their legal counsel for some time.

This is no surprise, based on the conflicts between federal law and the state laws authorizing the medical use of marijuana that have evolved over time. And the Nov. 2012 election outcomes in Colorado and Washington have added another dimension to the discussion: a need to consider adopting workplace "recreational" marijuana policies, as well.

That's why a company-specific, individualized approach to medical and "recreational" marijuana developed after consulting with -- and obtaining guidance from -- legal counsel is strongly recommended.

Legal counsel must be familiar with an organization's tolerance for legal risk and its legal-risk-mitigation policies. An organization's general-employment policies -- in particular, those related to workplace safety, the Americans with Disabilities Act, state and federal and discrimination compliance -- should all be considered in the context of medical and "recreational" marijuana. There is no silver bullet or easy answer that provides the best or only approach. However, following are some considerations that may help start such policy development.

There are strong feelings on both sides of the argument as to whether smoked marijuana is a medication or an illegal substance, and there is a great deal of ongoing publicity and lobbying, both pro and con. State legislation initiatives on medical marijuana continue, while such laws become more protective of the medical marijuana patient and treat smoked marijuana as if it were Federal Drug Administration prescription medication, even though it is, in fact, not.

Some states also believe that they can control distribution through regulation. These distribution activities may help build a state's tax base through revenue generation, from licensed -- and therefore taxed -- businesses authorized to grow and or distribute marijuana, to medical-marijuana patients in the respective states. 

Eighteen states and the District of Columbia have medical-marijuana laws that vary greatly in content and scope, thereby presenting different challenges for human resource professionals and their organizations. The following states currently include Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Maine (the Maine law was amended retroactively to Dec. 12, 2009), Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

The laws in Arizona, Connecticut, Delaware, Massachusetts, Montana, and Rhode Island are particularly challenging, based on the specific restrictive language referencing a prohibition of some sort against employment discrimination. Although employer-friendly, case law in Oregon and California should be taken into consideration when making a policy decision on whether or not to accept medical marijuana as a legitimate medical explanation for a positive drug test result.

A critical point to highlight is that the laws of these eighteen states and the District of Columbia conflict with federal law and policy. United States Code Section 812 (b) (1) Schedule 1 c (17) specifically prohibits tetrahydrocannabinoids, aka marijuana. States' rights versus federalism seem to represent the heart of the debate. (A second point of note is that medical marijuana is not a legitimate medical explanation for a positive test result for marijuana under federal employee testing programs for the United States Department of Transportation, although the prescription drug Marinol is.)

Currently, and as the result of the critically important U.S. Supreme Court decision, Alberto R. Gonzales, Attorney General, et al., Petitioners, v. Angel McClary Raich et al, in most states with medical-marijuana laws, an employer may safely refuse to accept medical marijuana as a reasonable medical explanation for a positive drug test result.

The Supreme Court case Ashcroft v. Raich was argued on Nov. 19, 2004. This case involved two California patients' rights to cultivate and possess prescribed marijuana. These patients had previously been protected from federal prosecution by the U.S. 9th Circuit Court's decision. More fundamentally, the case debates states' rights versus federalism. With the new administration, the case became Gonzales v. Raich, No. 03-1454 rather than Ashcroft v. Raich. On June 6, 2005, the Supreme Court ruled that the federal government may enforce the Controlled Substances Act prohibition on the use of marijuana for medical reasons against persons who use marijuana under the state medical-marijuana laws. This decision may impact the way medical marijuana use is interpreted in the workplace in future court decisions. By affirming that the use of medical marijuana is illegal under federal law, employers can refuse to consider accommodations that would acknowledge or support illegal activity. 

In addition to medical-marijuana state law, state case law decisions must be considered in an employer's policy decision. The most important recent state law decision addressing medical marijuana in the workplace is the California case, Ross v. Ragingwire Telecommunications, Inc., which was initially decided on the pleadings. The initial decision in Ross, published subsequent to the U.S. Supreme Court Decision Gonzales v. Raich, discussed previously in this article, held that employers were not required to hire an applicant that tests verified positive on a pre-employment drug test but provides a medical marijuana explanation for the positive laboratory test result. The lower court's Decision was upheld on appeal to the California Court of Appeal.

The Court of Appeals held that employers have legitimate interests in not employing persons who use illegal drugs. The Court further held that such use had resulted in, among other things, increased absenteeism from work, diminished productivity, greater health costs, and increased problems with respect to safety in the workplace. Ross v. Ragingwire Telecommunications, Inc. was thereafter appealed to the California Supreme Court, was argued to the Court on Nov. 6, 2007 and decided on Jan. 24, 2008. The Court affirmed the California Appeals Court's decision holding that, under California law, an employer may require pre-employment drug tests and take legal use into consideration in making employment decisions. 

Another example of state case law that should be considered is the Oregon Appeals Court decision of Washburn v. Columbia Forest Products, Inc. The Washburn Court ruled that Oregon employers might have to make reasonable accommodation for disabled workers invoking the protection of Oregon's Medical Marijuana Statute due to the requirements of the Oregonians with Disabilities Law. The Court also ruled that the worker's medical-use marijuana does not automatically entitle him to accommodations. Rather, an employer could argue that certain accommodations might be unreasonable or create "undue hardship."

In the two cases addressing whether an employer must accommodate the use of medical marijuana, Johnson v. Columbia Falls Aluminum Co. and Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, each court held that an employer was not required to accommodate an employee's use of medical marijuana. Notably, the plaintiff in the Johnson case was an applicant and the plaintiff in Emerald case was a temporary employee refused permanent status after Emerald learned that the temporary employee was a medical-marijuana user.

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In a more recent -- and employer-friendly -- case, Casias v. Wal-Mart Stores, Inc., the court held that Michigan's medical-marijuana law "says nothing about private employment rights" but "only provides a potential defense to criminal prosecution or other adverse action by the state." The decision was affirmed by U.S. Court of Appeals on Sept. 19, 2012.

Turning to so called "recreational" or "legalized" marijuana, on Nov. 6, 2012, Colorado and Washington legalized marijuana through referendum initiatives, becoming the first two states to do so. (This summarizes the election outcomes.) It has been reported in the national press that a number of former heads of the Drug Enforcement Administration have been asking for the federal government to challenge the state laws legalizing the recreational use of marijuana. Also, the United Nations International Narcotics Control Board's annual report "stressed the importance of universal implementation of international drug control treaties by all States parties and urges the Government of the United States to take necessary measures to ensure full compliance with the international drug control treaties in its entire territory."  

The popular press predicts litigation on the Colorado and Washington legalization of marijuana. Although whether to accept medical marijuana as a reasonable medical explanation is an employer-policy election for non-mandated, non-regulated, non-DOT testing programs, the laws in Colorado and Washington do not require an employer to accept a marijuana explanation from a donor.

Regarding DOT and federal employee mandated testing: through drug and alcohol testing industry communications from the U.S. Department of Transportation's Office of Drug and Alcohol Policy and Compliance, an ODAPC Representative has confirmed that the referendums in Colorado and Washington do not impact ODAPC's official position that marijuana is not a reasonable medical explanation for a positive DOT drug test. Marijuana -- including medical marijuana -- continues to be excluded from consideration as a reasonable medical explanation for a positive test, as per prior guidance from ODAPC.

For HR professionals, it is very important to consult with your organization's legal counsel on the impacts of the Colorado and Washington legalization laws consistent with your organization's workplace drug- testing program and legal risk mitigation strategy.

Your organization's drug-free workplace or employment policy should, at a minimum, consider including a statement that the recreational use of marijuana in the workplace is prohibited.

If your organization includes drug testing in its drug-free workplace policy -- and depending on your organization's risk- mitigation tolerance approach, policy and strategy – it should also include a statement that the recreational use of marijuana will not be considered to be a reasonable medical explanation for a positive drug test result during the medical review officer's review of the laboratory test result, and that the test result will be reported to your organization as a positive with a notation that a "recreational marijuana" explanation was provided to the MRO.

Josephine Kenney is senior vice president and senior compliance counsel for First Advantage Corp. in St. Petersburg, Fla. She has significant experience in employment workplace drug and alcohol testing, fleet safety matters, background screening, biometrics and immigration compliance.

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