Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Friday, May 17, 2019

Noting diverse employment law realities for medical marijuana users in diverse states

Governing has this effective new piece on employment law's intersection with marijuana reforms under the headline "Can Medical Marijuana Get You Fired? Depends on the State." The subheadline highlights a theme of the piece: "Less than half of the states where the drug treatment is legal protect patients from employment discrimination. Courts have generally sided with employers -- until recently." Here are excerpts:

In most states, you can use medical marijuana without getting arrested -- but it could still get you fired.  While 33 states have legalized cannabis for medicinal purposes, fewer than half of them protect patients from being fired or rejected for a job because of a positive cannabis test or simply because they're registered on a medical marijuana database.  This legal haziness has sparked lawsuits across the country.

Courts have generally sided with employers, says Peter Meyers, a law professor at George Washington University.  This was the case in 2006 in Oregon and in 2009 in Montana.  More recently, however, judges have shifted their verdicts in favor of employees.  In New Jersey last month, an appeals court ruled that medical marijuana use is covered under the state's ban on disability-based employment discrimination.  This case follows similar rulings in Connecticut, Massachusetts and Rhode Island. As more states legalize the drug treatment, the battle will continue in the workplace.

“The big problem is [marijuana] remains illegal federally except for narrow exceptions,” says Meyers, who has written about the constitutionality of drug testing. “There’s this conflict, and a lot of the court rulings have deferred to federal law. It’s a very confusing situation.”  The legal contradiction has left a lot of employers, and employees, uncertain about what rules to follow.

Bipartisan legislation to protect medical marijuana patients from employment discrimination has been introduced in Congress, but it only applies to federal workers and has yet to gain traction. With the federal government unlikely to change its marijuana policy any time soon, states are left to make their own rules.  In 14 of them, medical marijuana patients have explicit employment protections either through legislation or court rulings, according to the Marijuana Policy Project.

That leaves 19 states where people may have to choose between this treatment option and a job.  One of them is California, which was the first state to legalize medical marijuana, in 1996, but doesn't have explicit workplace protections.  The state Supreme Court ruled in 2008 that an employer could reject a job candidate with a positive cannabis test -- even if they had a prescription.  Bills seeking to override that decision have been tossed around without success.

Even where employment protections exist, they have limitations.  Arkansas law, for example, says an employer can't discriminate based on a person’s past or present status as a marijuana patient.  But companies can still ban employees from taking it at work.  In Oklahoma, employers can't penalize employees or applicants for a positive drug test -- unless failing to penalize someone would cause the employer to “imminently lose a monetary- or licensing-related benefit under federal law or regulation.”...

Despite the widespread legalization of medical cannabis, there are a number of reasons employers pause when it comes to having people who use it on their staff.  Some aren't fully aware of their state's protections, and others might fear losing out on federal funding.  “A lot of people are concerned about whether marijuana users will be less productive [at] work or if there will be more workplace accidents,” says Karen O’Keefe, state policies director for the Marijuana Policy Project.

But unlike many other drugs, THC, the active ingredient in marijuana, can be detected for 30 days or longer after use, so workplace drug tests don't necessarily portray a person’s current level of impairment.  As medical marijuana becomes less taboo, more employers will likely change their drug policies.  Already, fewer employers -- particularly those facing staff shortages -- are requesting preemployment tests for marijuana.

https://lawprofessors.typepad.com/marijuana_law/2019/05/noting-diverse-employment-law-realities-for-medical-marijuana-users-in-diverse-states.html

Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink

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