Sanford M. Stein
Social Change Comes Hard – but it Never Retreats TM
So you have a medical condition and you live in a medical marijuana state. Your condition is one that is recognized by your state medical marijuana authority and you get a medical card so you can legally be treated with cannabis. You feel better and go to work and then you’re fired, for using marijuana! What’s with that?
Well, your employer has a rule that no employee can use illegal drugs while at work or even away from work. So what you say, my use is legal and it helps me. Too bad, it’s still illegal under the United States Controlled Substances Act and that’s all it takes for your employer to terminate you under its drug free, zero tolerance policy policy.
Not fair? Yes fair according to several courts. It is up to the employer to determine whether it will allow you or any employee to come to work after using marijuana, even if it’s for legal medical reasons under state law.
Notably, Dish Network v. Coats upheld this rule noting that employer Dish had a drug free policy and employee Coats, violated the policy after using medical cannabis while off duty and after hours
What’s the deal here? Well, certain other legal drugs and alcohol can be prohibited from use by an employee if they might affect his or her work performance or if due to the nature of their position might pose a danger to themselves or others. Thus, drivers can’t drive under the influence of alcohol and benzos and certain anti-seizure drugs even if legal for treatment of certain ailments are not to be used by truck drivers, pilots , heavy equipment operators and others. If you’re in one of those jobs and are prescribed one of these medications, you might need to be re-assigned or retrained. Same is true apparently for medical use of marijuana.
Likewise, if you’re an employer, you need to decide on your workplace policies for use of cannabis by your employees, especially those that are being treated with cannabis for medical purposes. One policy might be that the employee’s cannabis use should be limited to high CBD, low THC cannabis since it is widely accepted that CBD delivers many of the same medical benefits as other forms of cannabis therapy without the psycho-impairment experiences of strains containing higher quantities of THC. This is hard to police though, since typical tests don’t distinguish between CBD and THC. Perhaps that test can be developed, but until then employers with a policy that would recognize the differences between CBD and THC might allow employees to swear an affidavit as to the strains the are using. A problem arises however if the employee does that and then breaches his oath, resulting in accident or injury. The employer might still be liable and insurance is not likely to cove him. That is why drug free policies with periodic testing are likely to prevail.
Even though state statutes generally exempt employees from workplace rules that prohibit the use of marijuana, case law is suggesting otherwise stating that employers can discipline employees for using marijuana on the job, based on federal restrictions or specific work rules. A bigger question is whether an employer can discipline a worker for off hours use of medical and even recreational cannabis. The states are split in this regard, some saying that an employee is protected if using cannabis off hours pursuant to valid sate authority, while others, uphold zero tolerance drug use policies notwithstanding legality under state law.
Federal contractors face a more demanding circumstance since all use of marijuana is illegal under federal law. Thus a federal contractor cannot knowingly allow the violation of federal drug laws, even if the use is legal under state law. This sets up an interesting states’ rights discussion e.g. is a federal contractor’s
9and its employees’ state right to use marijuana, preempted by his obligations to his federal contract conditions under federal law, not to violate federal drug laws.
What could solve this might well be a new “intoxication standard” of some kind for workplace tolerance of at least medical marijuana, while prohibiting all recreational use while at work. Testing standards for what is intoxication need to be further developed, but when they are, better understanding of appropriate use is likely to follow.
Copyright: Cannabis Law LLC