Employers Should Continue to Exercise Caution Regarding Marijuana Policies

Obermayer Rebmann Maxwell & Hippel LLP

As more states implement laws legalizing marijuana in some form or another, employers should pay close attention to whether those statutes include protections for covered individuals.  A previous post in HRLegalist outlined some of the issues for employers surrounding marijuana legalization in New Jersey, Connecticut, and New York.  A recent decision from a district court in Arizona provides a reminder that employers should use caution when taking action against an employee who legally uses marijuana, especially in states with similar marijuana laws, such as Pennsylvania.

In Whitmire v. Wal-Mart Stores Inc., (D. Ariz. Feb. 7, 2019)[1], the court found that the Arizona Medical Marijuana Act contained an implied private right of action because it was needed in order to enforce the law’s mandate that employers “may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon . . . [a] registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”  The court then granted summary judgment to an employee who was terminated after testing positive for marijuana because the employer did not meet its burden of proving that the worker was impaired by marijuana during the hours of employment.

Section 2103 of Pennsylvania’s Medical Marijuana Act contains similar language to that found in the Arizona Medical Marijuana Act in that it also prohibits employers from taking certain actions against employees based upon their legal use of medical marijuana.  However, employers are not prohibited from disciplining employees who are under the influence of medical marijuana in the workplace or who work under the influence of medical marijuana when the employee’s conduct “falls below the standard of care normally accepted for that position.”  The act also contains exceptions for acts that would put the employer in violation of Federal law.

The protections afforded to employees for legal marijuana use can vary from state to state.  Therefore, employers in operating in states where marijuana has been legalized should closely evaluate their responsibilities in each state and consult experienced employment law counsel before refusing to hire, terminating, or changing any terms or conditions of an employee’s job because of off-duty medical marijuana use.

[1] No. CV-17-08108, 2019 WL 479842, 2019 U.S. Dist. LEXIS 20049.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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