Tuesday, March 31, 2015

Coporate Counsel Section: Spotting Legal Issues Involving Marijuana in the Workplace

By John W. Bencivenga

Dealing with marijuana issues in the workplace is increasingly becoming a dicey proposition. If you are like me, your preference would be to handle this issue in the workplace just like you handle it at home, which in my case, with four teenage sons, means zero tolerance, no questions asked. If I find out you are smoking marijuana, if left to me, you would be fired (or grounded for life, in the case of my boys). However, much to my regret, “the times, they are a changin’.”

I recently ran across a case from the New Mexico Court of Appeals, Maez v. Riley Industrial, 2015 WL 178359 (N.M. Ct. App. Jan 13, 2015), which held that marijuana was a compensable drug in a workers' compensation case where the use of medical marijuana was reasonable and necessary medical care. Because the court held that medical marijuana was a compensable drug, the employer could be forced to pay for it. The appellate court concluded that the use of medical marijuana was reasonable and necessary even though the employee's health care provider did not initiate or recommend its use. With this brief background, here are some issues that may be soon rolling across your desk:

  1. Zero tolerance policies. There are at least 23 states that recognize the use of medical marijuana. Several more states may introduce legislation this year where the merits of medical marijuana will be debated. These state laws vary on whether an employer can terminate an employee for a positive drug test result. In states such as Arizona, Delaware, Connecticut, and Rhode Island, medical marijuana users are protected from discrimination for their use of marijuana. So, if your company has a standard zero tolerance policy and operates in several locations, it would be wise to research state law before terminating an employee who tests positive for marijuana.
  2. ADA protection issues. Under the Americans with Disabilities Act (ADA), the use of illegal drugs as defined by federal law is not protected. Marijuana remains illegal under federal law because it is classified as a Schedule 1 drug under the Controlled Substances Act (21 U.S.C. § 801 et seq.). Therefore, employers are not required to accommodate an employee’s use of marijuana for medical purposes in the workplace or during working hours. So, if Mr. Maez (from the case above) comes back to work and wants to use marijuana the workplace, the employer does not have to accommodate this request. However, assuming Mr. Maez is disabled, other ADA reasonable accommodations would have to be considered.
  3. Recreational use can be prohibited. Medical marijuana laws, in general, require the user to obtain a card or other documentation justifying use. In cases where employees are just smoking marijuana for recreational purposes, employers remain free to enforce drug-free workplace laws.
In summary, the days of “Just Say No to Drugs” seem to be a thing of the past. However unfortunate you (or I) think this may be, the fact is that in-house counsel need to stay up to date on the changing legal landscape involving these issues.