As Maryland's Medical Cannabis Program continues ramping up its implementation, a common question concerns whether or not an employee can be terminated for using medical marijuana, even though its use is legal in the state. For purposes of this article, the assumption is that the employee/patient is enrolled through a state that has decriminalized medical marijuana, that the patient has been diagnosed with a qualifying medical condition approved by that state, and that the patient has received a physician's recommendation for the use of medical marijuana to treat the symptoms associated with their diagnosis.
One last matter before we dive into this subject, there is a clear distinction to be made between the presence of medical marijuana on a drug screen, and working while under the influence of, or using, medical marijuana, by an employee while they are on-duty. This article speaks to the former.
Under current federal law, medical marijuana continues to be illegal pursuant to the Controlled Substances Act, and is listed as a Schedule I drug. According to the Drug Enforcement Administration (DEA): "Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse." While this law has not changed, in a document dated August 29, 2013 known as the Cole Memorandum, the Department of Justice Deputy Attorney General James Cole outlined federal law enforcement policy with respect to state laws, which allow citizens access to marijuana, whether for medical or adult use, as well as businesses and individuals complying with those laws. The cornerstone of this policy was its emphasis on state regulation.
According to the memo, the federal government should focus its efforts on specific enforcement priorities and rely on state law enforcement and regulatory authorities to manage areas that are not federal priorities. Included amongst those specific enforcement priorities are prevention measures for the distribution of marijuana to minors, the sale of marijuana to criminal enterprises, gangs, and cartels, and interstate commerce and transport. In essence, the Cole Memo lets states enact their own programs and gives limited protection to the businesses licensed through those states that follow a regulated program. According to Nicole van Rensburg of Bloom Medicinals, a Maryland-licensed dispensary, "Deputy Attorney General Cole made clear that to ensure U.S. government's concerns are addressed, the department expects states to implement a strong regulatory framework."
On January 4, 2018, the current US Attorney General, Jeff Sessions rescinded the Cole Memorandum, in effect leaving the decision to prosecute state-licensed medical cannabis entities up to each state's US Attorney, many of whom have publicly stated they will not do so. Moreover, while the Cole Memo was rescinded, it has no impact upon the Rohrabacher-Blumenauer Amendment, which denies funding to the Justice Department for enforcement of medical marijuana laws. According to the Puzzle Group Law Firm, "If Rohrabacher-Blumenauer is reauthorized, which is likely but not certain, then [Sessions' action] will be more bark than bite. Regardless of the change in policy, the federal government will not pursue medical marijuana prosecutions unless there are gross violations by a marijuana operator, such as diversion of cannabis across state lines." If Rohrabacher-Blumenauer is not reauthorized, then in theory the Justice Department could go after medical marijuana companies. As the Amendment has already been extended by Congress seven times, there is cautious optimism that it will be reauthorized, and business as usual will continue. However, if the Amendment were to be repealed, there is broad consensus in the medical cannabis industry that any action would come at tremendous financial and political cost, making it highly unlikely.
When a federal employee violates the Controlled Substances Act, they can be terminated due to unfavorable suitability. Notwithstanding the same, according to Office of Personnel Management Director Katherine Archuleta, the repercussions depend on "(i) the nature and seriousness of the conduct, (ii) the circumstances surrounding the conduct, and (iii) contributing societal conditions." (See Federal Laws and Policies Prohibiting Marijuana Use.) As of this date, this guidance remains in place.
For civilian employees, however, there is less clarity. Courts residing in jurisdictions where the use of medical marijuana has been decriminalized, and appropriate regulatory structure for the cultivation, testing, processing and dispensing of medical cannabis has been implemented, have consistently found that an employer may terminate an employee for failing a drug test. Arizona was the first state to explicitly provide statutory protection against employment discrimination for one's status as a medical marijuana cardholder. The Arizona law clearly states: "Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: 1) The person's status as a cardholder; or 2) A registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment."
While you might think that is pretty clear, play devil's advocate and read it a couple more times from the other side; the language leaves room for subjective judgment: How would an employer know the person's status as a cardholder? Is an employer's attempt to obtain that information a violation of federal HIPAA fax privacy laws? And if so, how is one federal law used to assert rights under another when one is adverse unto itself? Who determines the threshold of marijuana metabolites, and how will that threshold be ensured to be applied equally? How is "impaired" being defined? These are just a few questions that confirm that, at least in implementation, it is more complicated than that which can be defined in a few sentences.
Although some states are making a preemptive attempt to define this for their residents, the process of court cases and challenges is sure to continue. Legislation and/or litigation is currently pending in all the states with, or which are considering, medical marijuana legislation that could clarify the laws in those states. Generally speaking, employee protections in state marijuana laws are still very much in evolution:
STATES WITH NO EMPLOYEE PROTECTIONS
States with no employee protections category means that the medical marijuana statute explicitly provides no protections, or the statute is silent and the state has case law that has found no employee protection for off-duty use under each state's respective medical marijuana act. States which have implemented a legal medical cannabis program that currently have no employee protections are California, Colorado, Michigan, Montana, Ohio, Oregon, and Washington.
Seven states and the District of Columbia have state medical marijuana laws that are silent as to employee protections and generally only provide criminal protections. Some of these states have issued agency guidance based upon relevant case law, but no clear statements have yet been issued. These states include Alaska, Hawaii, Maryland, Massachusetts, New Hampshire, New Mexico, Vermont, and Washington, D.C.
STATES WITH CLEAR EMPLOYEE PROTECTIONS
The following eleven states have statutes with explicit language (anti-discrimination or reasonable accommodation provisions) providing varying levels of employment protection. These laws generally prohibit adverse action against an employee/applicant based on their status as a medical marijuana cardholder or participation in a medical marijuana program. States which have implemented a legal medical cannabis program that currently have clear employee protections in place include: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Pennsylvania, and Rhode Island.
STATES WITH UNCLEAR EMPLOYEE PROTECTIONS
Florida, Louisiana, New Jersey and North Dakota all have medical marijuana laws that are silent or vague on employee protections, and applicable state regulatory agencies have not yet provided guidance on employee protections. Being newer programs, Florida and North Dakota are expected to offer additional information as their implementations ensue.
Under current laws, employers in all 50 states do not have an obligation to accommodate an employee who is working while under the influence of medical marijuana, nor must they accommodate the use of medical marijuana by an employee while they are on-duty.
Evolving beyond assumptions
So where does all this leave your company? The following are a few suggestions worthy of consideration:
1. Recognize that not all forms of medical marijuana produce intoxication. See my piece directed at patients on how to speak with their physician about medical marijuana to learn more about the various strains, and methods of delivery.
2. Understand, and be able to articulate, the difference between being under the influence of a substance, and the substance itself. Become aware of your own perceptions and any bias toward the word "marijuana" and its associative imagery. Take a conscious lead in closing the gap between facts and sociocultural conditioning. Observe any personal inclinations to associate the word "intoxication" with some medications and not others, even though they produce similar or greater psychoactive effects - no need for self-criticism, just observe your own tendencies.
3. Recognize that there are millions of people who are at work daily and under the influence of a psychoactive substance such as antidepressants, pain killers, anti-anxietals, anti-convulsants, muscle relaxants, etc. Observe any personal tendencies to mentally disparage one medical condition and its treatment modalities over others. Extend your expanded awareness to qualifying medical conditions responsive to medical cannabis therapies.
4. Seek the advice of an experienced employment attorney - this article is not intended to give legal advice, and laws vary state to state. Consider speaking with a highly regarded and experienced attorney in employment and medical marijuana law to learn more about the options and remedies available in your state.
5. Hold open the possibility that your employees may start a petition at your company to have your drug testing policies changed. Facilitate an open environment for discussion and for sharing solutions. Bring in thought leaders from both sides of the issue for a candid town hall with your employees.
6. If you have the presence of mind to observe your own tendency to project bias into the mix, consider removing yourself from the decision-making process. Appoint a thoughtful chairperson, perhaps one with a legal or risk management background, to form a committee of trusted employees and perhaps some outside mentors. Empower your committee to issue a recommendation based upon their research, and have them present their case with options. You do not have to accept the committee's recommendation, but just going through the process will not only inform and education, it will open minds and hearts.
One of the many challenges employers face today is attracting and retaining exceptional workforce talent. Corporate cultures can create barriers or create opportunities. While it may seem counter-intuitive to limit business success by narrowing your workforce candidate pool because of drug screening policies that may have outlived their cultural usefulness, what is clear is that by becoming an Employer-of-Choice, you will situate your company to attract the best and brightest without creating unnecessary obstacles.
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