Quirky Question #211, Marijuana Use

Question :

One day during the lunch break, as I was heading to my car in the parking lot, I discovered two employees smoking what smelled like pot.  I approached the employees and reprimanded them for engaging in illegal activities on the job, and told them that I would have them terminated.  One of the employees, whose mother works at a plaintiff side employment firm and whom I knew suffered from chronic low back pain, said that I could not terminate them because their activities were legal.  They both brought in a “recommendation” for marijuana from a physician and left it on my desk.  When I called them in to investigate, they stated that they would have claims for disability discrimination and failure to reasonably accommodate if I disciplined or terminated them.  Is this true?  Do I have to allow my employees to use pot?

Answer: By Gabrielle Wirth

Gabrielle Wirth

Gabrielle Wirth

As with many answers in the employment law area, the answer is “no, unless……”. Although the use of medical marijuana is legal in sixteen (16) states (including Alaska, Arizona, California, Colorado, Montana and Washington), and the use of recreational marijuana is legal in Colorado and Washington, marijuana, or pot, is still an illegal drug under federal law (The Controlled Substances Act). As such, employers are not required to accommodate the use of marijuana, especially during working hours or on the employers’ property.

Two courts in different states have reached the same conclusion, although by employing different analyses.  First, the California Supreme Court in Ross v. Raging Wire held employers were not required to accommodate medical marijuana users under a California’s Fair Employment and Housing Act (“FEHA”) which prohibits an employer from discriminating against persons with qualified disabilities, and requires employers to engage in a good faith interactive process to determine reasonable accommodations for disabled employees.  The Ross Court reasoned that California’s Compassionate Use Act (Proposition 215) was intended to protect physicians and users from criminal liability, and was not intended to apply in the employment context.  According to the Court, “no state law can completely legalize marijuana for medical purposes because the drug remains illegal under federal law.”  Thus, an employer can terminate an employee for failing its drug test, even if the employee has a prescription for marijuana use.

Second, the Colorado Court of Appeals in Coats v. Dish Network, LLC, upheld an employer’s termination of a quadriplegic employee, who was prescribed marijuana by his doctor, after the employee failed the employer’s drug test.  The Court of Appeal disagreed with the employee’s argument that his termination violated a Colorado law which prohibits an employer from discharging an employee for “engaging in any lawful activity off the premises of the employer during non-working hours.”  The Colorado court reasoned that “for an activity to be ‘lawful’ in Colorado, it must be permitted by and not contrary to both state and federal law,” and “an activity that violates federal law but complies with state law cannot be ‘lawful.’”

The common theme in these two cases is, in the absence of laws specifically allowing the lawful use of marijuana in places of employment, employers are not required to accommodate an employee’s use of marijuana during working time or in the workplace, even if prescribed by the employee’s medical caretaker.  This means employers can terminate employees who test positive for marijuana or those employees whom employers reasonably believe are impaired by marijuana use.

Several Caveats.  While you need not allow the employee to smoke pot on your time or premises or come to work impaired, other forms of accommodation may be required.  These accommodations would be similar to those appropriate for the use of other legally prescribed narcotics.  For example, you may need to consider a modified work schedule or leave of absence which would allow sufficient time after the employee’s proper medical use of marijuana for the level of the metabolites from pot to fall below detectable limits.

Gabrielle Wirth

Employers turn to Gabrielle for guidance on how they can comply with the technical employment laws in California, Montana and nationwide while meeting their business needs. Her successful trial experience in a broad range of employment disputes includes wage and hour, whistleblower, wrongful termination, discrimination, harassment, retaliation, breach of contract, and trade secret/noncompetition cases. She also represents employers before a wide variety of state and federal agencies including the EEOC, OFCCP, state human rights agencies, the Labor Commission, the Employment Development Department and OSHA.

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