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POT IN THE WORKPLACE
By Jennifer Brown Shaw and Jasmine L. Anderson
The Daily Recorder
2013-01-23

Colorado and Washington recently passed laws legalizing the recreational use of marijuana. Eighteen states (including California) and the District of Columbia allow the use of “medicinal” marijuana in certain circumstances. California employers must understand how medicinal marijuana laws affect “drug- free workplace” policies and the duty to reasonably accommodate individuals with disabilities.

Marijuana Use is Illegal Under Federal Law

Despite state laws permitting marijuana use for recreational or medicinal purposes, marijuana remains illegal under federal law. Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act (“CSA”). The CSA prohibits the use or possession of Schedule I drugs, including marijuana. The CSA also prohibits health care providers or other from writing prescriptions for these types of drugs.

On December 3, 2012, the United States Department of Transportation (“DOT”) issued a notice in response to the new laws in Colorado and Washington permitting the use of marijuana for recreational purposes. The DOT clarified that these laws do not affect in any way the DOT’s prohibition of marijuana use by employees in safety-sensitive transportation positions, such as pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains, and pipeline emergency response personnel, among others. So, while DOT-covered employees in Colorado and Washington may legally use marijuana under state law, they can still lose their jobs for failing to pass a drug test, for instance.

California Employers Not Required to Accommodate Medical Marijuana Users

In 1996, California voters passed the Compassionate Use Act, better known as “Proposition 215.” Under the law, individuals may legally use, possess or cultivate certain amounts of marijuana for “medicinal” purposes. Not surprisingly, the passage of Proposition 215 led to the creation of a cottage industry, with “pot” dispensaries arguably providing “Proposition 215” cards to just about anyone who claims to have a “serious” medical condition.

For several years, employers and others argued about Proposition 215’s affect on workplace laws. The California Supreme Court settled the issue in a 2008 decision, Ross v. RagingWire. In that case, an applicant argued (among other things) that RagingWire violated the Fair Employment and Housing Act by refusing to hire him because he tested positive for medicinal marijuana. The Court ruled that Proposition 215 merely protects individuals against criminal prosecution by state authorities and does not address the rights of employers and employees. Accordingly, RagingWire was not required to accommodate the applicant’s use of marijuana and the applicant could not sue for a violation of public policy.

Recently, federal courts and courts in other states have addressed the same issue. For example, in James v. City of Costa Mesa, the Ninth Circuit Court of Appeals held that the Americans With Disabilities Act (“ADA”) does not protect medical marijuana users from discrimination based on their use of medicinal marijuana. Similarly, in Casias v. Wal-Mart Stores, Inc., the Sixth Circuit Court of Appeals held that Michigan’s Medical Marijuana Act does not modify the state’s “at-will employment” rule or create a claim for wrongful termination in violation of public policy based on an employer’s refusal to hire or retain individuals who use medical marijuana. (See also Roe v. TeleTech Customer Care Management, in which the Washington Supreme Court ruled that the state’s medical marijuana laws do not protect medical marijuana users from negative hiring or disciplinary decisions based on an employer’s drug testing policy, and Emerald Steel Fabricators v. Bureau of Labor and Industries, in which the Oregon Supreme Court ruled that the Oregon Medical Marijuana Act does not provide employment protections to employee and the federal CSA supersedes Oregon’s medical marijuana laws.)

Notably, unlike California, some states prohibit employers from discriminating against employees who use medical marijuana. For example, under the Arizona Medical Marijuana Act, employers generally cannot discriminate against or penalize employees based on their status as medical marijuana users. Rhode Island’s medical marijuana laws also prohibit employers from discriminating against employees with a medical marijuana card, but employers may prohibit employees from using marijuana in the workplace and are not required to accommodate marijuana use. Similarly, in 2012, Connecticut passed a law that forbids employers from refusing to hire, discharging, penalizing, or threatening employees based on their medical marijuana use.

Tips for Employers

It appears the trend towards decriminalizing marijuana will likely continue to gain steam, particularly in California where we have seen strong support for such action (although voters rejected the most recent attempt, Proposition 19, in 2010). Because of the press generated by the new Colorado and Washington marijuana laws, California employers should ensure their policies reflect a commitment to a drug-free workplace and make clear that a Proposition 215 card will not insulate applicants and employees from negative consequences at work. Employers should also stay informed of ongoing developments in this area and seek advice of competent legal counsel where appropriate.

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