Wednesday, October 14, 2020
"Say 'No' to Discrimination, 'Yes' to Accommodation: Why States Should Prohibit Discrimination of Workers Who Use Cannabis for Medical Purposes"
The title of this post is the title of this notable new paper authored by Anne Marie Lofaso and Lakyn Cecil recently posted to SSRN. Here is its abstract:
This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.
Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization likely hindered the medical development of cannabis for at least a century. American society’s negative perception of cannabis began to yield, however, as scientific evidence of cannabis’s healing capacity gained popularity. Increased demand for medicinal cannabis resulted in a clash of perceptions between marijuana, the demonic influencer of immoral or criminal behavior, and cannabis, the angelic healer. It is this cognitive dissidence that helps explain the strange result of Brandon’s case.
Part II surveys the role of employment law in protecting employees who use cannabis for medical purposes. We explore the public policy exception to at-will employment and various federal and state disability statutes. We conclude that judges can and should apply these measures to protect workers who may be vulnerable to discharge because of their cannabis use.
Democracies cannot and should not depend on judges to make important changes in public policies, even when those changes are to common law doctrines created by judges in the first place. Part III surveys two states’ statutes—those of Nevada and Oklahoma—that protect workers who use medical cannabis from employment termination. Applying the knowledge gained from Part II, we collated what we believed to be the best language from the statutes of those two states and rewrote Colorado’s constitution in a manner that would account for employees’ interests and employer’s legitimate concerns.
Part IV acknowledges that employers may be slow to change their medical cannabis policies. With this reality in mind, we review some best practices as to how employers can accommodate cannabis use among its workers, including appropriate exceptions to an accommodation policy that take into account employer’s legitimate business interests without cutting into the essential accommodations medical cannabis users need to become or remain productive members of the U.S. workforce.