Employers are not required to accommodate an employee’s current use of illegal drugs, including marijuana...

In November 2012, Colorado and Washington became the first states to legalize possession of small amounts of marijuana for recreational use. Pursuant to the Federal Controlled Substances Act (“CSA”) 21 U.S.C. § 801 et seq., marijuana is classified as a Schedule I controlled substance in the same category as cocaine, LSD, heroin and ecstasy. Physicians cannot issue prescriptions for  Schedule I narcotics.

The Federal Government’s Response

On August 29, 2013, the U.S. Department of Justice announced an update to its federal law enforcement policy concerning state legalization of marijuana. The Department of Justice confirmed that marijuana is still illegal under federal law and that prosecutors will continue to aggressively enforce the federal drug laws.

Presently, the Department of Justice has elected to defer its right to challenge the legalization of marijuana by states that have legalized marijuana, as long as those states establish strict marijuana regulatory schemes.

For now, marijuana distribution, possession and use remain illegal under federal law. Only Congress can legalize marijuana at the federal level. It is unlikely that this will happen in the near future.

However, if pharmaceutical and tobacco companies become interested in the marijuana industry, there will likely be a lobbying effort in Congress to legalize marijuana at the federal level.

Do Employers Have to Accommodate Medical Marijuana Use Under the ADA?

No. Employers are not required to accommodate an employee’s current use of illegal drugs, including marijuana. Moreover, under the Americans with Disabilities Act, an employer can prohibit the illegal use of drugs (including marijuana).

Can Colorado and Washington Employers Regulate Marijuana Possession and Use by Their Employees?

Yes. Amendment 64, which legalizes recreational marijuana in Colorado, specifically allows employers to have policies restricting the use of marijuana by employees, and it also allows employers and property owners to completely prohibit marijuana possession and use on their property. Although, Colorado courts have not interpreted what are permissible employer restrictions for recreational marijuana use, this issue has been addressed in the medical marijuana context.

In Coats v. Dish Network, 303 P. 3d 147 (Colo. Ct. App. 2013), the Colorado Court of Appeals construed whether the off-duty, off-premises use of medical marijuana was protected by Colorado’s Lawful Activities Statute. C.R.S. § 24-34-402.5. This Statute prevents an employer from terminating the employment of an employee due to the employee’s engaging in any lawful off-duty, off- premises activity. Mr. Coats, a quadriplegic, worked for Dish in their call facility. Mr. Coats was licensed by the state of Colorado to use medical marijuana pursuant to Amendment 20. Mr. Coats alleged that he used marijuana within the limits of his license, never used marijuana on Dish’s premises, and was never under the influence of marijuana at work. Dish fired Mr. Coats after he tested positive for marijuana, which established a violation of Dish’s zero tolerance drug policy. Mr. Coats sued Dish alleging that his termination violated the Lawful Activities Statute. The court held that Mr. Coats’ use of marijuana was not lawful, because marijuana remains illegal under federal law, and upheld his termination of employment.

Washington state’s Initiative 502 legalizes recreational marijuana. However, this initiative does not contain any provisions concerning marijuana possession or use by employees. Similarly, Washington’s Medical Use of Marijuana Act (“MUMA”), which was previously adopted by the voters, does not address an employee’s possession or use of medical marijuana. In Roe v. Teletech Customer Care Management (Colorado) LLC, 257 P.3d 586 (Was. 2011) the Washington Supreme Court, held that MUMA did not provide a private cause of action for discharge of an employee who uses medical marijuana, either expressly or impliedly, nor did MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.

How Should Employers Regulate Marijuana Use by their Employees?

• Review substance abuse policies to ensure restrictions concerning illegal drug use include “recreational and medical marijuana.” Employers can still have zero tolerance drug policies.
• Pre-employment, post-accident and reasonable suspicion drug testing, are permissible, as long as the employer is complying with all applicable federal, state and local laws concerning drug testing.
• Employers should educate their employees concerning their perception of their legal right to use marijuana versus the employer’s expectations concerning marijuana use.

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[Vance O. Knapp, Esq, is admitted to practice law in Arizona and Colorado. He is a partner in the Labor and Employment Department at Sherman & Howard L.L.C., in Denver, Colorado.

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