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How to react to marijuana use by employees without getting sued

May 31st, 2017  |  Lorene Park

By Lorene D. Park, J.D.

According to the National Conference of State Legislatures (NCSL), 29 states, the District of Columbia, Guam, and Puerto Rico currently allow for the medical use of marijuana and have comprehensive programs providing protection from criminal penalties and, in some states, from employment discrimination. Other states have more limited laws, in terms of dosage, protections for medical use, or use with respect to only certain types of health conditions. (For recent proposals, see Eight of nine states appear to have approved marijuana-related ballot proposals.)

After reviewing many of these laws, as well as articles and court decisions discussing them, I concluded two things. First, courts and commentators alike seem overly fond of quoting from songs and movies themed around getting high. Second, there are a few trends in the laws and cases that can provide some guidance to employers. Most importantly, state medical marijuana laws generally do not relate directly to workplace drug testing and do not require employers to accommodate marijuana use on duty. In addition, state laws that prohibit discrimination based on after-hours marijuana use make exceptions where the level of THC (the active ingredient in marijuana) in the blood is high enough to impair an employee while at work.

The following examples from recent cases also provide guidance on typical claims, including: plain violations of a medical marijuana statute; disability discrimination; inconsistently enforced drug policies (allegedly due to age or race discrimination); and tort claims based on how a test is conducted (negligence) or based on the dissemination of results (defamation).

Violation of medical marijuana statute

Marijuana is still an illegal drug under the federal Controlled Substances Act, and the prior administration’s policy of letting state and local authorities address marijuana use may not be followed by the Trump administration. Nonetheless, more states have enacted laws authorizing the production, distribution, and possession (in small amounts) of marijuana for medical use and in some cases recreational use. Some states have laws that specifically prohibit employers from taking adverse employment actions based on employees’ use of medical marijuana (though, again, no state requires condoning the use, or being under the influence, while on duty). So how does a case based on a statutory violation look? Consider a recent case from Rhode Island.

After pondering the challenges posed by the legalization of marijuana, a Rhode Island superior court held that Darlington Fabrics violated the state’s Hawkins-Slater Act by refusing to hire an intern because she held a medical marijuana card. The statute, Section 21-28.6-4(d), states: “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” The applicant disclosed she had the card and said yes when asked if she currently used medical marijuana. She explained she was allergic to other painkillers and assured the employer she would not use marijuana at work or bring it to work, but she was denied the position. After finding that the Act provides for a private right of action, the court held that Darlington violated the law because it denied employment based on a belief that the applicant would not pass its drug screen. While the Act does not require an employer to accommodate medical use of marijuana in the workplace, the plaintiff was rejected for using marijuana outside the workplace. She was therefore granted summary judgment.

No preemption. It is worth noting that Darlington Fabrics also raised a preemption challenge to the Rhode Island law based on the federal Controlled Substance Act. Finding no preemption, the superior court explained that the purpose of the CSA, concerning the “illegal importation, manufacture, distribution, and possession and improper use of controlled substances,” was “quite distant from the realm of employment and anti-discrimination law.” It also pointed out that, when it comes to the use of medical marijuana, “Congress seems to want, as Justice Brandeis said, the States to be the laboratories of democracy” (Callaghan v. Darlington Fabrics, Corp.).

Disability discrimination

Medical marijuana cases also often feature claims employers used medicinal marijuana cards or use as a pretext for taking an adverse action based on the disability for which the employee was prescribed marijuana. In the Callaghan case above, the court also ruled that the plaintiff stated a claim of disability discrimination under state law, even though the employer claimed she never disclosed the condition for which she was prescribed marijuana (migraine headaches). The court found it undisputed the employer knew she was disabled—otherwise she would not have had a medical marijuana card.

Similarly, in a recent case out of the District of Columbia, a federal court refused to dismiss a discrimination claim by a medical marijuana user who was fired from his job at a supermarket after testing positive for marijuana. Although he might ultimately “face an uphill climb” in proving discrimination, the court found that he raised a plausible inference he was terminated because of his glaucoma (for which he was prescribed marijuana), rather than because of his positive drug screen, especially because he alleged another employee who tested positive for drugs was not fired (Coles v. Harris Teeter, LLC).

Again, keep in mind, it is okay to have workplace anti-drug policies and to prohibit the use of marijuana or being under its influence while working. Indeed, many of the state marijuana laws and several court decisions specifically provide that employers do not have to accommodate an individual’s medical marijuana use at work. It is the after-hours use that employers in medical marijuana states cannot use as a basis for termination or other adverse action.

Inconsistent enforcement of drug policy

And whatever you do, be consistent in enforcement; otherwise, your anti-drug policy may be considered a pretext. Realistically, the inconsistent enforcement of any employment policy that has an adverse effect on an individual or group of individuals is going to raise questions as to why. In the marijuana context, it is employers’ inconsistent enforcement of anti-drug or “zero tolerance” drug policies.

Consistent enforcement is not a problem. For example, a licensed medical marijuana caregiver caught up in a restaurant’s investigation of other employees for suspected drug dealing could not show the restaurant’s stated reason for firing her (she admitted giving medical marijuana to a coworker and a witness testified she sold drugs on the premises), alongside the others, was pretext for age discrimination under Michigan’s Elliott-Larsen Civil Rights Act. The federal court noted that the employee handbook strictly prohibited the “illegal use, sale, or possession of narcotics, drugs, or controlled substances while on the job or on Company property,” and despite the employee’s state medical marijuana card and license, marijuana remains illegal under federal law (Henry v. Outback Steakhouse of Florida, LLC).

In another case, an African-American truck driver who claimed he was not hired after he tested positive for marijuana had his Title VII race discrimination claim tossed because it was undisputed that the company did not hire individuals who test positive for marijuana, and he offered no evidence that the first test was unreliable or that a second drug test would have come out negative. Nor was the employer’s reporting the result to the state racially motivated because reports of positive results were made as a matter of routine, affirmed the Seventh Circuit (Turner v. Hirschbach Motor Lines). Likewise, a federal court in Pennsylvania found no evidence supporting federal and state-law race discrimination claims where an employer fired all eight employees who either failed or admitted that they would not pass a drug test. The employer investigated after a hotline call that specifically identified the plaintiff as having sold marijuana at work (Butler v. Arctic Glacier USA).

Tort claims

Any supervisor, decisionmaker, or individual who investigates suspected violations of a workplace drug-use policy should be trained on privacy-related claims such as false light and intrusion upon seclusion claims, as well as defamation, emotional distress, and other claims that can arise in this context. For example, a registered medical marijuana cardholder in California was fired by Kohl’s after he applied for workers’ comp and tested positive for marijuana. Although he told the HR director he was not under the influence at work and only used marijuana in connection with his anxiety diagnosis, she purportedly said, “You should have chosen a different medication.” He will take his defamation claim to trial based on Kohl’s statements in a termination form that he tested positive and violated three policies, including reporting to work in a condition unfit to perform his duties. Based on evidence that marijuana is detectable in urine for up to 30 days but impairment lasts only hours, and based on the employee’s declaration that he did not use the medicine within several days of working and had not used marijuana for several days before his injury, a jury could find he was not in an unfit condition or under the influence at work. It could also find that Kohl’s statements were made with a “reckless or wanton disregard for the truth” (Shepherd v. Kohl’s Department Stores, Inc.).

One interesting type of defamation claim, which an emerging majority of state courts appear to be rejecting, involves “compelled self-defamation”—meaning an individual would be forced to disclose why he or she left a prior position, even if the individual believed it was based on an erroneous positive drug result. A recent example of this comes from a case filed by a technician who worked for an Exxon contractor in Texas and who was put on “inactive” status after testing positive for marijuana. Though he prevailed before the appeals court on his compelled self-defamation, discrimination, and tort claims arising from that employment decision, the Texas Supreme Court reversed and rendered judgment for the defendants, holding that there is no claim for compelled self-defamation under Texas law.

The discrimination claim against the employer failed for lack of valid non-Hispanic comparators, and his tort claims against Exxon failed because the mere fact that Exxon had contractual substance abuse program requirements for the plaintiff’s employer did not establish the requisite control by Exxon over the third-party drug screening company used by the employer, nor was it evidence of tortious inference with employment (Exxon Mobil Corp. v. Rincones).

How to avoid getting sued . . . or at least liability

Based on the foregoing, there are a few points to keep in mind when trying to avoid liability:

  • Tailor your zero-tolerance policy to comply with laws applicable in your jurisdiction, focusing on promoting a safe, healthy, and productive work environment. Consider including an at-will disclaimer, details on the logistics of drug tests (where done; who pays), and a consent for the employer’s receipt of test results.
  • Prohibit only work conduct (e.g., being under the influence at work) and avoid penalizing lawful after-hours activity. (Note, however, that marijuana is still illegal under federal law, so a wrongful discharge claim under a state lawful activities statute may fail if “lawful” refers to federal law too. That was the result in Coats v. Dish Network, a Colorado case.)
  • Notify employees, through handbooks or policies, when drug tests may be required (e.g., workplace accidents, erratic behavior, or other reasonable, clearly defined grounds).
  • Be consistent in enforcing the drug policy and train supervisors to react consistently over time and as between employees. Require that decisionmakers have a legitimate business reason for any adverse action and insist that there be a solid basis for any conclusion that an employee has violated a drug policy (e.g., an admission or a positive test result).

One final recommendation is simply this: Hire an employment law expert to craft your policy and review the policy on an annual basis. Don’t wait until you are sued. There are simply too many changes in this area of law to be certain that a policy will be compliant from year to year. For example, there were changes to OSHA’s regulations on reporting injuries, including post-accident drug testing (which prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses) but those were delayed and the future of the rule is uncertain, given the Trump administration’s regulatory rollback. There is also a question as to whether the federal government will start to increase enforcement efforts with respect to the Controlled Substances Act.

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