Archive for May, 2010

MMJ in the employment setting

Monday, May 10th, 2010

MEDICAL MARIJUANA AND EMPLOYMENT IN COLORADO

In November 2000 Colorado voters added an amendment to Colorado’s Constitution that permits the use of marijuana for a list of medical conditions upon recommendation by a physician.

One provision of the amendment states: “Nothing in this section shall require an employer to accommodate the medical use of marijuana in any work place.” Despite the amendment, there are questions about what an employer should do when an employee is found to be using marijuana on the job. Legislation Colorado may adopt this year will not answer the questions.

Currently, if a physician recommends that a patient could benefit from medical marijuana, the patient registers as a patient with the Colorado Department of Public Health and Environment (CDPHE). The patient receives a registration card allowing the person to produce his or her own medical marijuana or obtain it from a marijuana grower, usually through a dispensary.

If an employee (or independent contractor) has a valid registration card from CDPHE, this does not mean the employee has the constitutional right to use marijuana (medicinal or otherwise) at the employee’s workplace or to be under the influence of marijuana on the work premises. Use and possession of medicinal marijuana are still federal crimes despite the October 2009 statements from the U.S. Department of Justice (DOJ) that the federal government will not focus its resources on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the use of medical marijuana.” The U.S. Department of Transportation (DOT) has stated its regulated drug testing program will not be changed based upon the DOJ statement. Thus persons who must be licensed or permitted by DOT, such as truck drivers, school bus drivers, and pilots, must continue to test negative for controlled substances. Likewise, where a “drug free workplace” is required to be maintained by federal statutes,
regulations, a contract to receive federal funds, or being a federal contractor, the “drug free workplace” needs to be maintained despite Colorado’s Constitution.

Medical marijuana use is not protected by the Americans with Disabilities Act (ADA) although a State Court of Appeals in Oregon said the ADA did apply to medical marijuana patients. That decision has been appealed to the Oregon Supreme Court. Courts in California and the State of Washington have upheld the employer’s right not to accommodate medical marijuana use. It is unknown at this time whether Colorado’s Unlawful Prohibition of Legal Activities statute prohibits any kind of policy of an employer that could be construed as prohibiting a Colorado person’s right to access and possess marijuana for medicinal purposes.

This entire subject area is filled with “probablies” and “probably nots” and “no one knows.” Does Colorado’s Constitution prohibit an employer from maintaining a “drug free workplace”?
(Probably not. Many Colorado employers have followed the federal rules for creating a “drug free workplace” through employment policies.) Can a Colorado employer continue to use policies that would create a “drug free workplace”? (Probably. The amendment specifically says an employer will not be required to accommodate the medical use of marijuana in any work place. An employer with a “drug free workplace” policy may be able to rely on the policy to combat charges by employees of wrongful termination for drug use.)

Currently most analysts believe an employer may prohibit the use of “controlled substances” at the workplace by all employees. “Controlled substances” under federal law include marijuana. An employer may require that employees not be under the influence of or be engaging in the “illegal” use of drugs in the workplace. Of course, the last comment begs the question when you have, as we do in Colorado, marijuana that is illegal for some purposes but legal as medicine for others and where it is uniformly illegal under federal law. There may, however, be some requirement for an employer to try to accommodate an employee who has a medical condition for which the employee is entitled to use medical marijuana under Colorado law if the condition is one for which the employer could provide accommodation outside of medical marijuana use.

Employers can take some steps:
1. Publish a drug policy that is clear and includes a policy regarding medical marijuana;

2. Include in the policy information on how medical marijuana use will be treated as part of an overall drug and alcohol testing program;

3. Notify all employees and applicants about the policy;

4. Avoid using “generic” employment policy manuals; rather use materials that fit Colorado’s particular requirements;

5. Understand that although an employer may not be required to accommodate medical
marijuana use, the employer may have a responsibility to engage with its employees in
interactive discussions about any medical limitations an employee has that may require
accommodation under the ADA or Colorado law;

6. Be consistent at all times in application of drug and alcohol policies.

Other questions that do not have answers at this time include (a) Can an employee be fired for use of medical marijuana on the job? (Probably, but the answer is not entirely clear especially if the employer does not have a clear policy regarding medical marijuana in the work place.) (b) Is an employer liable for injuries caused by an employee while on the job after using medical marijuana? (It depends on the facts and circumstances, but probably.) (c) How do the medical information privacy rules of HIPPA interrelate to any information an employer has regarding an employee’s use of medical marijuana? (They probably apply to the condition but not to the holding of a registration card for medical marijuana.) (d) Can an employer ask an employee or a prospective employee if the person has a medical marijuana registration card? (Probably not.) (e) If an employer knows an employee has a medical marijuana card, would this be grounds for “reasonable suspicion” about drug use that would justify a drug test for that employee? (Probably
not on invasion of privacy grounds.)

Many questions will need to be answered by the courts. To a large degree, on this subject an employer operates at risk until answers emerge in the future, but it is likely clear policies established by employers will be helpful.