About Us  |  About Cheetah®  |  Contact Us

New issues emerge regarding medical marijuana use by employees

October 28th, 2014  |  Lorene Park

By Lorene D. Park

Medical marijuana is currently legal in 23 states plus the District of Columbia, but more states are in the process of legalizing it. Among these states, Colorado and Washington also allow recreational use and they may soon be joined by Alaska, Oregon, and the District of Columbia, depending on the outcome on the upcoming November vote. But the use of marijuana is still illegal under federal law. That leaves employers with a whole lot of questions and only piecemeal answers as courts and legislatures grapple with the changing legal landscape. Here are some recent developments.

Can employees still receive unemployment benefits if they were fired for failing an employer’s drug test after their medical use of marijuana? According to a Michigan Court of Appeals, employees cannot be denied unemployment benefits solely on this basis. The court consolidated the cases of three employees, who were qualified patients with registration identification cards under the Michigan Medical Marihuana Act (MMMA), and were not using or under the influence of marijuana on the job, but were fired for testing positive and then denied unemployment on that basis. The court held that it would be an impermissible penalty under the MMMA to require employees to forfeit unemployment benefits simply for using medical marijuana, so long as they did not disqualify themselves in other ways such as ingesting or being under the influence at work. The court was careful to point out that nothing in the opinion requires an employer to allow employees to ingest marijuana at work or to work while under the influence (Braska v Challenge Manufacturing Co).

Must an employer’s “zero tolerance” drug use policy make an exception for the use of medical marijuana? This remains an open question. Some states have laws that specifically prohibit employers from discriminating against employees based on medical marijuana use and protect employees from termination for simply having a medical marijuana card. But that doesn’t mean zero tolerance policies are per se unlawful and no state requires employers to condone marijuana use, or being under the influence of marijuana, while on duty.

The Colorado Supreme Court is currently considering this issue in Coats v Dish Network, LLC, a case involving a quadriplegic customer service rep who was fired after testing positive for marijuana in violation of the employer’s drug policy. He was licensed to use medical marijuana, and he did so while off-duty to ease his disability. He asserted that he never used the drug at work and was never impaired while on duty. The appeals court had held that Colorado’s Lawful Activities Statute, which prohibits employers in the state from firing employees for engaging in lawful off-duty conduct, does not bar the discharge of an employee who uses medical marijuana off the clock. Although Colorado’s Medical Marijuana Amendment permits use of the drug for medicinal purposes (and the state’s voters legalized its general use), marijuana is still prohibited under federal law, the majority noted, and thus was not a “lawful activity” under the statute at issue. Thus, the appeals court upheld the dismissal of the employee’s wrongful discharge claims. Oral arguments were heard by the state high court on September 30, 2014.

Is an employee entitled to reimbursement for medical marijuana under workers’ compensation laws? A state appeals court in New Mexico has said yes on this issue in a case involving an employee who had numerous surgical procedures after a workplace back injury and suffered frequent and extremely severe pain as a result. Agreeing with a workers’ compensation judge that New Mexico’s Workers’ Compensation Act and its attendant regulations authorize reimbursement for medical marijuana, the appeals court affirmed the judge’s order requiring an employer to reimburse the employee for medical marijuana used under the Lynn and Erin Compassionate Use Act. Rejecting the argument that the judge’s order was contrary to federal public policy, the court noted that the Department of Justice has recently offered “equivocal statements” about state laws allowing marijuana use for medical and even recreational purposes, and has even informed the governors of two states that voted to legalize possession of the drug and regulate its production and distribution that it would defer its right to challenge those laws (Vialpando v Ben’s Automotive Services).

Employers should stay informed. Given the changing legal landscape as open questions are decided, and the potential for liability under antidiscrimination and other laws, employers should stay informed of new developments at both the state and federal levels. Note that marijuana is still a controlled substance under federal law but that Attorney General Eric Holder announced guidelines for prosecutors in states with medical marijuana laws, making it clear that the focus of federal resources is not on individuals whose actions comply with state marijuana laws. For an overview of Federal law, see “Federal law and marijuana use at work.”