Despite twenty states allowing the use of medicinal marijuana and two more – Colorado and Washington – allowing recreational marijuana use, employers remain unaffected. Courts consistently find that employers may terminate employees who test positive for marijuana, regardless of whether such employees are using marijuana to treat a disability; whether they were not under the influence on company time; or whether they used or possessed marijuana on company premises.
In fact, state courts in Colorado, Michigan, Washington, Oregon, Montana, and California as well as the 6th and 9th Circuits agree on two key points that allow employers the option of continuing zero-tolerance approaches to drugs. Specifically, those cases endorse two key propositions. First, employees may be disciplined or terminated for marijuana use, despite state statutes prohibiting discipline for engaging in lawful activity outside of work. Second, employers need not accommodate medical marijuana use as a disability-related condition.
This holds true even if the employee is:
a paraplegic trying to alleviate pain (Curry v. MillerCoors, Inc., No. 12-cv-02471 JLK, 2013 WL 4494307 (D. Col. Aug. 21, 2013));
subject to pain from injuries sustained in the armed forces for which marijuana is the only effective resort (Ross v. Raging Wire Telecommunications, Inc., (2008));
unable to eat due to anxiety, nausea, and other symptoms without marijuana (Emerald Steel Fabricators v. Bureau of Labor and Industries, 230 P. 3d 518 (2010)); or
treating an inoperable brain tumor with marijuana (Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012)).
This set of seemingly puritanical rulings has a logical linchpin: marijuana remains illegal under federal law. Thus, it does not have the same status as other prescription drugs (e.g., Percocet, Xanax, etc.). Marijuana has – courtesy of its ongoing, but unenforced, federal criminalization – the status of street drugs like cocaine or heroin. There is no duty to accommodate illegal drugs so employers need not accommodate the medical use of marijuana. Similarly, if a state has a statute expressly prohibiting adverse action for lawful, off-duty conduct, employers are still safe: marijuana ain’t legal under federal law. See e.g., Curry v. MillerCoors, Inc. (Colorado law).
Until marijuana becomes legal under federal law or until state statutes allowing medical marijuana explicitly address marijuana in the workplace, employers have the option to continue to ban users of that drug.
To exercise that option, employers should update their Drug-Free Workplace Policy (e.g., prohibit “use of drugs illegal under either federal or state law” rather than “working under the influence of drugs”) and review their drug testing protocols to ensure that it complies procedurally with applicable statutory law and that it is conducted both accurately and with appropriate measures to avoid tort claims for invasion of privacy.