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The Hazy Issue of Marijuana in the Workplace

Even with legalized pot laws on the books in 20 states, it’s still unclear how medical and recreational marijuana fits into workplace drug and alcohol policies.

June 30, 2014
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Related Topics: Legal Compliance, Substance Abuse, Drug & Alcohol Testing, Disabilities, Health and Wellness, Policies and Procedures, Legal
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Brandon Coats, a former Dish Network employee, was terminated from his telephone operator position in 2010 after he tested positive for marijuana. Coats, a quadriplegic who lives in Colorado and legally holds a medical marijuana license, sued Dish Network over his termination. The case is currently before the Colorado Supreme Court.

The outcome of the case will determine if employers in Colorado have the right to terminate employees who use medical marijuana under their drug and alcohol policies. As states continue to offer citizens protections for the use of both medical and recreational marijuana, employers are increasingly confronted by the dilemma of enforcing a drug and alcohol policy or running the risk of a wrongful termination lawsuit.

Because some laws are ambiguous on how medical and recreational marijuana fits in the workplace, there is confusion among employers, explained Jonathan Segal, partner and managing principal at law firm Duane Morris in Philadelphia. However, given that employment in most states is “at-will,” employers have to right to enforce their drug and alcohol policies regardless of any medical or recreational marijuana law. At-will employment means an employer can terminate an employee for any reason and without warning.

The laws “offer protection from state-law prosecution. In most states, employees are not protected from adverse actions by employers based on marijuana use,” Segal said.

Twenty-one states and the District of Columbia currently have medical marijuana programs. In addition to medical use, Washington state and Colorado have legalized the recreational use of marijuana.

Five states — Arizona, Delaware, Connecticut, Maine and Rhode Island — have anti-discrimination provisions in their medical marijuana laws that prohibit employers from firing employees who use medical marijuana after work and not on company property. The Coats case would effectively establish a similar rule for employers in Colorado.

Coats said he used marijuana within the limits of his prescription to treat chronic pain he experiences because of a spinal injury. He testified he never smoked on Dish Network’s premises and was never under the influence at work — essentially in keeping with the anti-discrimination provisions of other states. The former phone operator argued he acted within the lawful activities statute of the Colorado Civil Rights Act, and therefore his termination was discriminatory. Marijuana use is a violation of Dish Network’s drug and alcohol policy.

“I think it’s a natural read of the medical marijuana anti-discrimination provisions to say ‘anti-discrimination’ means an employer can’t terminate a medical marijuana card holder for smoking marijuana so long as it’s not at work, or if they’re not intoxicated at work,” said Michael Clarkson, chairman of Ogletree, Deakins, Nash, Smoak & Stewart’s drug-testing practice group in Boston. “In the handful of states that have anti-discrimination provisions, terminating an employee means you run the risk of being the test case for what anti-discrimination means.”

“But in the handful of states that have anti-discrimination provisions, terminating an employee means you run the risk of being the test case for what anti-discrimination means.”

A Schedule 1 Drug

The issue of marijuana — medicinal or recreational — in the workplace is complicated by its classification as a Schedule I drug by the federal government. Schedule I classification puts marijuana in the same league as cocaine and heroin and disqualifies its use as protected under the American with Disabilities Act. Schedule I drugs are considered to have no medical value.

Additionally, the federal government requires drug and alcohol testing for some industries, such as transportation and aviation. Many truckers, for example, must meet the drug and alcohol requirements set by the U.S. Transportation Department. 

Rules set by the “Department of Transportation are going to trump state law; it doesn’t matter where a company is located,” Clarkson said. “CDL drivers have to pass their DOT drug test and their employers need to be compliant with Transportation Department regulations. Marijuana is forbidden.”

According to legal experts, general physical safety is employers’ main concern when it comes to medical marijuana. Even companies that aren’t subject to federal drug and alcohol standards will have strict rules concerning marijuana. It’s common for employees of the nuclear power, construction and manufacturing industries to be required to comply with strict company drug and alcohol policies, Segal said.

Segal finds it interesting that workers in the professional services sector — accountants and lawyers — are not held to the same standards as many blue-collar workers when financial harm can be devastating and difficult for companies and individuals. However, physical harm usually carries financial implications as well, and it appears most employers hope to limit financial liabilities by removing physical threats in the workplace.

Ultimately, a drug and alcohol policy is a judgment call for many employers.

“Every employer is going to balance this differently,” Clarkson said. “Some will take a strict anti-marijuana stance and risk getting sued under the state anti-discrimination provisions, and some are going to say they don’t want to be the test case.”

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