Employment Law Marijuana Paper

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Shannon Borden
Employment Law Capstone Paper
Medical & Recreational Marijuana in Employment Law
The Pot Stops Here: Why Employees Still Face Termination Over Marijuana Use
I.
Introduction
John Doe works for a high-end restaurant, XYZ Restaurant, as a valet attendant. One
day, while on duty, John is driving a guest’s car when he hits a parking block, damaging the
front tire and bumper. Pursuant to company policies and procedures, XYZ Restaurant submits
John to post-accident drug testing. John’s drug test comes back positive for marijuana. John
informs his employer that, under state law, he legally smoked recreational marijuana with some
friends over the weekend. John was not under the influence of marijuana at work and was not
impaired at the time of the accident. XYZ Restaurant terminates John’s employment pursuant to
its “zero tolerance” drug policy. John sues XYZ Restaurant for wrongful termination in
violation of public policy.
Jane Doe, John’s sister, works for a software company, ACE Software. She was recently
diagnosed with ovarian cancer and took a leave of absence from work. Pursuant to state law,
Jane’s physician prescribed medical marijuana for Jane to treat Jane’s chemotherapy symptoms.
When Jane is cleared to return to work, ACE Software submits Jane to post-leave drug test
pursuant to the company’s policies and procedures. Jane’s drug test comes back positive for
marijuana. Jane explains that she lawfully obtained and used marijuana for her disability under
the state’s medical marijuana act. ACE Software terminates Jane’s employment pursuant to its
drug policy, which prohibits unlawful or illegal drug use. Jane sues for wrongful termination
and disability discrimination.
In each of these scenarios, an employee has been fired for drug use under an employer’s
policy against unlawful drug use in the workplace. In the context of wrongful discharge and
disability discrimination claims in the workplace, what are an employee’s rights regarding use of
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medical marijuana or recreational marijuana when the state has legalized marijuana for either
purpose? What are the employer’s rights? What changes if recreational marijuana becomes
legalized in more states? How does the intersection of state and federal law affect an employee’s
workplace rights and how can employees protect themselves?
This paper focuses on the tension between lawful use of marijuana under state laws, in
contrast to the continued illegality of marijuana under federal law and the employers’ responses
to this conflict.
There are few other issues such as these in the forefront of employment law because fortyone states have already passed laws or regulations that make medical marijuana legal while four
states have passed legislation legalizing recreational marijuana. Further, this November, five
additional states, including Nevada, Massachusetts, Maine, Arizona and California, had ballots to
legalize recreational marijuana, of which all but Arizona passed. Yet marijuana remains illegal
under federal law as a Schedule I Controlled Substance. And, most state legislation does not
take into account and does not provide regulation on how employers should treat marijuana in
the workplace once it has been legalized.
Any state that changes their laws with respect to legalizing marijuana needs to accompany
legalization with better guidance on employee and employer rights in the workplace. In fact,
states that legalize marijuana should also include legislation or regulation with respect to how
employers treat marijuana in the workplace, including how employers should treat positive drug
tests for marijuana, when the state has legalized marijuana for either medical or recreational
purposes. Part II of this paper focuses on the tension between state laws and federal law as they
exist today. Part III focuses on current medical marijuana law, Part IV discusses the new state
trend in legalizing recreational marijuana, Part V discusses the effect of future changes in state
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legalization and Part VI proposes short-term and long-term solutions to the conflict between state
and federal laws.
II.
“At-Will” Employment, the ADA and Marijuana Collide.
The default rule generally in the United States is that hiring an employee is for an
indefinite duration and is terminable at the will of either the employer or the employee, for any
or no reason whatsoever, which is referred to as “at-will” employment.1 Many employers utilize
drug testing in the workplace in many ways, including pre-employment, random, post-accident
and re-employment, in order to provide a safe and effective work environment for employees, as
well as make decisions such as hiring and firing.2 Such tests often incorporate searches for both
legal prescription drugs and illegal drugs.
The Americans with Disabilities Act (the “ADA”) limits aspects of an employer’s ability
to drug test in the workplace.3 For example, in pre-employment drug testing, before a
conditional offer of employment is made, the employer is only permitted to utilize a drug test to
discover the presence of illegal drugs.4 However, once a conditional job offer is made, an
employer can test for both illegal and legal drugs.5 State privacy laws may also place limits on
employment drug testing, such as in California where post-employment drug testing is only
permitted if there is reasonable suspicion.6
Many employers maintain “zero tolerance” policies regarding the drugs permitted in a
drug test result, as well as disciplinary measures the employer may take for violations of the
policy.7 Typically, zero tolerance policies mean that the employer does not tolerate or permit
positive drug tests for any illegal drug under state or federal law and employees who test positive
often have their employment terminated or their conditional offer of employment rescinded.8
3
The ADA also prohibits employers from discharging an employee on the basis of a
disability.9 Currently, depending on the state, persons with disabilities in the U.S. can obtain a
valid prescription form their physician and/or a license to use medical marijuana to treat the
symptoms of their disability. Twenty-five states10, the District of Columbia, Guam and Puerto
Rico all permit comprehensive public medical marijuana and cannabis programs.11 In seventeen
other states,12 “low THC, high cannabidiol (CBD)” products are permitted for limited medical
situations or as a legal defense.13 However, regardless of the lawfulness of medical marijuana in
any particular state, employees may still have their employment terminated for use of medical
marijuana because of a positive drug test during pre-employment, post-employment, postaccident or random drug testing under an employer’s policies and procedures because marijuana
remains illegal under federal law.14 As a result, some employees sue their employer for
wrongful discharge15 under state disability laws and the ADA because there is dichotomy
between federal law and state law, which permits the employee’s use of medical marijuana.16
Unfortunately, as described in greater detail below, employees do not prevail in these
lawsuits.17 This is because, under federal law, marijuana is currently a Schedule I Controlled
Substance of the Controlled Substance Act.18 Therefore, regardless of any state law that permits
the lawful use of marijuana for medical purposes, marijuana is still an illegal drug under federal
law. This distinction is especially important when states have legalized marijuana for either
medical or recreational purposes because, under federal law, marijuana remains illegal and
employers can conduct employment drug testing both pre-employment and post-employment for
the presence of illegal drugs under the ADA. Notably, neither state laws nor the ADA recognize
marijuana as a legal drug nor do they provide any protection for employees who use marijuana in
accordance with state marijuana laws.
4
Further, despite the fact that the Department of Justice (the “DOJ”) issued a
Memorandum in 2009 during the Obama Administration that the DOJ did not intend to prosecute
the use of medical marijuana, marijuana (medical or otherwise) remains illegal in the United
States.19 In fact, as recently as 2013, the Drug Enforcement Agency (the “DEA”) conducted
raids on medical marijuana dispensaries in Colorado.20
In 2014, the DEA also investigated Massachusetts physicians linked to proposed medical
marijuana dispensaries and demanded they sever all ties to marijuana companies or face the loss
of their federal licenses to dispense other federally regulated medications.21 Although the House
of Representatives voted to amend DEA appropriations in May 2014 in order to prohibit the
DEA from spending funds to go after medical marijuana operations that are legal under state
laws,22 a few months later, in October 2014, the DOJ announced an update to its federal
marijuana enforcement policy in response to state ballot initiatives that legalize, under state law,
possession of marijuana.23 In the update, the DOJ stated that, “marijuana remains an illegal drug
under the Controlled Substances Act and that federal prosecutors will continue to aggressively
enforce this statute.”24
Thus, regardless of any particular state statute that makes marijuana legal for medical
purposes, and despite the fact that Congress has banned spending funds on enforcement,25 the
federal government still intends to prosecute parties for illegal use, possession or distribution of
marijuana in the United States. In fact, on July 19, 2016, the DEA confirmed that marijuana
remains illegal for any purpose under federal law when it denied a petition to reschedule
marijuana.26
With respect to the recent presidential election, President Elect Donald Trump’s
campaign did not respond to requests for detailed information regarding President Trump’s
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position on the legalization of marijuana.27 However, approximately twenty-five years ago, long
before President Trump entered into politics, President Trump made statements that he supported
the legalization of marijuana for adults.28 Then, in February 2016, President Trump discussed
legalization of marijuana with Fox News Host Bill O’Reilly. During that conversation, President
Trump stated that he “would really want to think about that” issue because he believed that, in
some ways, legalization was good, but in other ways, he felt that legalization was “bad.”29
President Trump went on to say that he wanted to “see what the medical effects are” of
marijuana, but that he is “a hundred percent in favor of medical marijuana.”30 Nevertheless,
close aides to president Trump, including New Jersey Governor Chris Christie and Alabama
Senator Jeff Sessions, have “taken a hard line against marijuana legalization.”31
Given President Trump’s apparent reluctance to either support or oppose legalization of
marijuana, as well as the fact that aides close to him oppose marijuana legalization, it is unlikely
that President Trump’s policies will support legalization of medical marijuana, much less
recreational marijuana. Thus, it is very unlikely that federal policy is going to change any time
soon with respect to legalization of marijuana for either medical or recreational purposes.
III.
All Hail Medical Marijuana: A Majority of States Have Passed Medical Marijuana
Legislation but Employees Still Have No Protection from Termination.
Despite the current illegality of marijuana at the federal level, forty-one states, the
District of Columbia, Guam and Puerto Rico have all enacted statutes permitting some form of
medical marijuana, whether for manufacturing, research, dispensing, use or as a legal defense.32
The following is a summary of the statutes enacted by these states as it relates to employment.
Out of the twenty-five states that have comprehensive public medical marijuana and
cannabis programs, fourteen states have statutes that affirmatively state that an employer is not
required to permit or accommodate medical use of marijuana in a place of employment,
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including Alaska33, California34, Colorado35, Illinois36, Massachusetts37, Montana38, New
Hampshire39, New Jersey40, New York41, Ohio42, Oregon43, Pennsylvania44, Rhode Island45, and
Washington46. Although Arizona47 and Maryland48are silent on the matter of workplace
accommodation, their state statutes does not prevent the imposition of any civil, criminal or other
penalties for being under the influence of medical marijuana such that it would constitute
negligence or professional malpractice.
Hawaii49 provides for affirmative defenses against prosecution, but is silent with respect
to workplace accommodation. New Mexico50and Vermont51 do not limit civil or criminal
prosecution for use, possession or being under the influence of medical marijuana on an
employer’s premises but are also silent as to workplace accommodation.
In Nevada, an employer is not required to allow the medical use of marijuana in the
workplace. However, the employer must attempt to make reasonable accommodations for the
medical needs of an employee who engages in the medical use of marijuana if the employee
holds a valid registry identification card, provided that such reasonable accommodation would
not: (a) Pose a threat of harm or danger to persons or property or impose an undue hardship on
the employer; or (b) Prohibit the employee from fulfilling any and all of his or her job
responsibilities.52 Thus, in Nevada, and only in Nevada, an employee can attempt to obtain a
reasonable accommodation for medical marijuana use provided these two caveats are met.
However, these provisions are very broad and give the employer a great deal of latitude in
deciding whether an accommodation can be made. More likely than not, employers will be able
to prohibit marijuana use as an accommodation so long as the employer can make a reasonable
argument that such use falls under one of these broad categories.
7
Only five of the twenty-five states (or 20%) that permit the use of medical marijuana also
prohibit discrimination against employees, which are Connecticut53, Delaware54, Maine55,
Michigan56, and Minnesota57. Notably, although these states prohibit discrimination against an
employee for medical marijuana use, they also do not restrict an employer’s ability to prohibit
use during work hours or from disciplining employees who are under the influence at work.58 In
other words, all twenty-five states that have legalized medical marijuana do not protect
employees from discipline, up to and including termination, if they test positive for marijuana
regardless of whether or not they were under the influence at work.
Notably, marijuana metabolites are detectable in the bloodstream for days, weeks, or
even months after use because it is stored in fat cells.59 This means that employees who use
medical marijuana to treat a disability can have their employment terminated even if they have
not consumed marijuana for months after their treatment ended. Further, termination for such
use can occur even if employees use marijuana in accordance with state regulations because
employers are not required to accommodate marijuana use even if it is used to treat a disability.
a. Michigan.
In 2012, the Michigan District Court held that private employers are not required to
accommodate medical marijuana use in the workplace even if medical marijuana is being used in
accordance with state law, which was upheld by the Sixth Circuit Court of Appeals60.
In Casias v. Wal-Mart Stores, Inc., Casias sued his employer, Wal-Mart, for wrongful
discharge after he was fired under the company’s drug use policy for testing positive for
marijuana.61 Casias was subjected to a drug test in accordance with company policy after he was
injured at work. Casias, who was diagnosed with sinus cancer and an inoperable brain tumor at
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the age of seventeen, claimed that the company’s application of its drug use policy to him
violated the Michigan Medical Marihuana Act (“MMMA”).
The question before the state court was whether the MMMA eliminates the normal rule
of at-will employment and creates a new protected class for certain marijuana users in Michigan.
The state court held that the MMMA does not regulate private employment. Rather, it provides a
potential affirmative defense to criminal prosecution or other adverse action by the state and
possession and use of marijuana in Michigan, even for medical purposes, is still a crime.
According to the state court, the MMA does not create a special class of civil protections for
medical marijuana users, nor does it address private employment directly. The state court
concluded that private employers are not required to accommodate the use of medical marijuana
in the workplace because, “[w]hatever protection the MMMA does provide users of medical
marijuana, it does not reach to private employment.” Casias subsequently appealed and the en
banc Sixth Circuit Court affirmed the judgment of the district court.62
The Sixth Circuit Court agreed that the MMMA does not impose restrictions on private
employers such as Wal-Mart. The Circuit Court stated that the statutory language of the MMMA
also does not support Casias’ interpretation that the statute provides protection against
disciplinary actions by a business. In sum, the Circuit Court agreed that private employers are
not required to accommodate medical marijuana in the workplace because “such a broad
extension of Michigan law would be at odds with the reasonable expectation that such a farreaching revision of Michigan law would be expressly enacted.”
b. Washington.
In Washington63, the results are similar with respect to wrongful discharge and disability
discrimination suits filed by employees against their employers. In 2011, in Roe v. TeleTech
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Customer Care Management (Colorado), LLC, Roe failed a pre-employment drug test due to use
of medical marijuana and TeleTech terminated her employment after learning of the positive test
result.64 Roe subsequently sued for wrongful discharge. The court held that, although the
Washington State Medical Use of Marijuana Act (MUMA) provided an affirmative defense to
qualifying patients and caregivers, MUMA “does not provide a private cause of action for
discharge of an employee who uses medical marijuana, either expressly or impliedly, nor does
MUMA create a clear public policy that would support a claim of wrongful discharge in
violation of such a policy.” Further, the court stated that, “MUMA does not require employers to
accommodate off-site medical marijuana use.” The court also reiterated that, “Washington
patients have no legal right to use marijuana under federal law.” In sum, the court held that,
“MUMA does not prohibit an employer from discharging an employee for medical marijuana
use, nor does it provide a civil remedy against the employer.”
In 2015, the district court of Washington followed the Roe decision. In Swaw v. Safeway,
Inc., Swaw was terminated for testing positive for marijuana after a work-related accident and
filed a lawsuit for disability discrimination because his use of medical marijuana was related to
his disability.65 The district court found that, “Washington law does not require employers to
accommodate the use of medical marijuana where they have a drug-free workplace, even if
medical marijuana is being used off site to treat an employee’s disabilities,” because, “the use of
marijuana for medical purposes remains unlawful under federal law.” The court further stated
that, “…users of an illegal intoxicant are not a protected class,” and granted Safeway’s Motion
for Judgment on the Pleadings.
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c. California.
In 2008, the Supreme Court of California decided Ross v. RagingWire
Telecommunications, Inc., wherein Ross filed an action against RagingWire alleging a violation
of the California Fair Employment and Housing Act (FEHA) (failure to accommodate a
disability) in that firing him for failing a drug test violated the Compassionate Use Act of 1996,
which permitted the use of medical marijuana.66 The Supreme Court of California found that,
“No state law could completely legalize marijuana for medical purposes because the drug
remains illegal under federal law, even for medical users.” According to the court, “Nothing in
the text or history of the Compassionate Use Act suggests the voters intended the measure to
address the respective rights and obligations of employers and employees.” Further, the court
found that the Compassionate Use Act does not require employers to accommodate marijuana
use and, as a result, there was no cause of action under FEHA or public policy. Interestingly,
Judge J. Kennard, who both concurred and dissented, noted in his dissent that, “The majority
gives employers permission to fire any employee who uses marijuana on a doctor’s
recommendation, without requiring the employer to show that this medical use will in any way
impair the employer’s business interests.”
This was followed shortly thereafter by Shepherd v. Kohl’s Department Stores, Inc. in
2016, wherein the Eastern District of California reached a similar decision. In Shepherd v.
Kohl’s, Shepherd’s employment as an assistant shift supervisor was terminated pursuant to a
positive drug test after a work-related injury.67 Shepherd had a valid medical marijuana license
for acute, chronic anxiety and had used marijuana off-duty several days prior to the accident.
The employer terminated his employment on the basis that Shepherd (1) reported to work in a
condition unfit to perform his duties or under the influence of a controlled substance; (2) he
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violated a safety rule pertaining to work areas; and (3) because he acted “in conflict with the
interests of Kohl’s,” which Shepherd claimed was wrongful termination because medical
marijuana use was legal under state law.
In reaching its decision, the court cited Ross v. RagingWire where the California Supreme
Court held that California’s Compassionate Use Act provided immunity against criminal
prosecution but “made no other changes in the legal status of marijuana.” The court reiterated
that, “no state law could completely legalize marijuana for medical purposes because the drug
remains illegal under federal law, even for medical users.” Further, the Compassionate Use Act
does not “speak to employment law,” but rather “merely provide(s) immunity to criminal
prosecution…” On Shepherd’s claim of disability discrimination, the Court differentiated
between Shepherd’s disability and the manner in which he chose to treat his condition through
use of medical marijuana. Although the court stated that there was “no dispute that the only
evidence of plaintiff’s impairment at work was the positive test for marijuana metabolites,” the
court also noted, “Obviously, defendant (Kohl’s) cannot be compelled to accommodate
plaintiff’s medical marijuana use.”
d. Oregon.
In 2010, in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, Emerald
Steel sought review of a decision by the Bureau of Labor and Industries (BOLI), where BOLI
concluded that Emerald Steel engaged in disability discrimination when it discharged an
employee due to the employee’s use of medical marijuana.68 The en banc Supreme Court of
Oregon held that (i) state law did not require an employer to accommodate an employee’s use of
medical marijuana because marijuana possession is unlawful under federal law; (ii) an employee
who engages in the illegal use of drugs is not entitled to a reasonable accommodation; and (iii)
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the provision of the Oregon Medical Marijuana Act that affirmatively authorized the use of
medical marijuana was preempted by the Federal Controlled Substances Act, which explicitly
prohibits marijuana use without regard to medical purpose. In reaching its decision, the court
stated that, “by classifying marijuana as a Schedule I drug, Congress has expressed its judgment
that marijuana has no recognized medical use…Congress did not intend to enact a limited
prohibition on the use of marijuana, i.e., to prohibit the use of marijuana unless states chose to
authorize its use for medical purpose…Rather, Congress imposed a blanket federal prohibition
on the use of marijuana without regard to state permission to use marijuana for medical
purposes…[and] the Supremacy Clause requires that we respect that choice…”
e. Montana.
In an unpublished decision from 2009, Johnson v. Columbia Falls Aluminum, Co., LLC,
the Montana state court similarly found that employers are not required to accommodate
marijuana in the workplace.69 More specifically, Johnson was terminated after he neglected to
inform Columbia Falls Aluminum Company (CFAC) that he was using medical marijuana, failed
a drug test and then refused to sign a “last chance” agreement. Under a collective bargaining
agreement (CBA), to which Johnson was a member, CFAC had a drug testing policy that
employees would be subject to discipline, up to and including termination, for testing positive for
certain controlled substances, including marijuana. After a work-related injury, Johnson began
treating his pain with medical marijuana under the supervision of a Montana-licensed physician
and limited his treatment to after work hours. Thereafter, a fitness-for-duty evaluation reported
that he tested positive for marijuana. CFAC gave Johnson a “last chance” agreement, whereby
CFAC required Johnson to test non-positive for marijuana as a condition of returning to work.
Johnson never signed the agreement and was subsequently terminated. Johnson essentially
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claimed that CFAC violated the ADA when it failed to accommodate his medical marijuana use
by waiving the terms of its drug testing policy. However, the court held that Johnson failed to
state a claim upon which relief could be granted because the Montana Medical Marijuana Act
(MMA) does not provide employees with either an express or implied private right of action
against an employer. Rather, the MMA specifically provides that it cannot be construed to
require employers “to accommodate the medical use of marijuana in any workplace.” In
conclusion, the court stated that, “an employer is not required to accommodate an employee’s
use of medical marijuana.”
Notably, Montana is the only state that does not follow the “at-will” employment
doctrine. Specifically, the only time Montana employers can terminate the employment
relationship “at-will” is during the probationary period. Otherwise, Montana’s Wrongful
Discharge from Employment Act prohibits an employer for discharging an employee without
“just cause.”70 Although Johnson did not file a claim that his employer discharged him without
cause, there may be an additional argument in Montana for lack of “just cause” in marijuana
discharge cases.
f. Colorado.
In 2013, the Supreme Court of Colorado71 decided Coats v. Dish Network, L.L.C.,
wherein Coats, a quadriplegic, brought a discrimination action against Dish Network alleging
that his employment was terminated based upon his state-licensed use of medical marijuana.72
Dish Network fired Coats for violating the company’s drug policy after Coats tested positive for
marijuana despite the fact that Coats claimed that he used marijuana within the limits of his
license, never used marijuana on his employer’s premises, and was never under the influence of
marijuana at work. According to the Court, Coats’ use of medical marijuana was not “lawful”
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because an activity that violates federal law but complies with state law “cannot be ‘lawful’
under the ordinary meaning of that term,” and, thus, an employee could be terminated solely for
such use. Coats’ appeal is currently pending.
The Colorado state court likewise found that marijuana use is not lawful under federal
law despite the fact that the employee had a lawful medical marijuana license under state law. In
an unpublished decision also from 2013, Curry v. MillerCoors, Inc., Curry’s employment was
terminated after testing positive for marijuana, which was a violation of MillerCoors written drug
policy, despite the fact that Curry had a license for medical marijuana, used marijuana within the
license’s limits, never used marijuana on MillerCoors’ premises and was never under the
influence of marijuana at work.73 Curry subsequently filed a lawsuit for discriminatory
termination for treatment of his disability, hepatitis C, osteoarthritis and pain with use of medical
marijuana. However, the court held that, “a positive test for marijuana, whether from medical or
any other use, is a legitimate basis for discharge under Colorado law,” because it is acceptable
for an employer to have a written drug policy and to terminate an employee as a result of a drug
test showing the presence of marijuana in the employee’s system during working hours. Citing
Slaughter v. John Elway Dodge Southwest/Autonation, the court stated that, “Despite concern for
Mr. Curry’s medical condition, anti-discrimination law does not extend so far as to shield a
disabled employee form the implementation of his employer’s standard policies against
employee misconduct.”74 Further, the court stated that, for an activity to be lawful in Colorado,
“it must be permitted by, and not contrary to, both state and federal law,” and because
“marijuana is subject to and prohibited by federal law, it is not a lawful activity.” The court
granted MillerCoors’ Motion to Dismiss.
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g. New Mexico.
In Garcia v. Tractor Supply Company, a decision from 2016, the New Mexico state court
held that New Mexico’s Compassionate Use Act (CUA) did not mandate that employers
accommodate medical marijuana use and the Controlled Substances Act preempted the CUA.75
Garcia, who suffered from HIV/AIDS, had his employment terminated for using medical
marijuana after he failed an initial employment drug test. With respect to the Controlled
Substances Act (CSA) in particular, the court noted that, “reliance on an enforcement policy of
the United States Attorney General is not law, and instead, is merely an ephemeral policy that
may change under a different President or different Attorney General.” According to the court,
“To affirmatively require Tractor Supply to accommodate Mr. Garcia’s illegal drug use would
mandate Tractor Supply to permit the very conduct the CSA [federal law] proscribes.”
h. Why State Legalized Medical Marijuana and Employment Drug Testing Cannot
Co-Exist.
As a result of this body of decisions from the Sixth Circuit, the Ninth Circuit and the
Tenth Circuit, employees working in states in these circuits have no recourse when their
employment has been terminated due to medical marijuana use that is lawful under state law. In
all of the existing cases, Courts have found that the legalization of medical marijuana use under
state law does not prohibit an employer from terminating an employee for use of medical
marijuana even when the employee is not under the influence of marijuana at the workplace.
Further, the Courts reiterate that marijuana remains illegal under federal law and state law cannot
preemptively force employers to accommodate drug use that is still illegal at the federal level
even if state law has legalized medical marijuana use.
Thus, under case law so far, employers do not have to accommodate medical marijuana
use and can terminate employees simply for testing positive, which means they do not have to
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have any evidence that the employee was under the influence of marijuana at work. Further, no
state law claim or ADA claim of wrongful discharge for use of marijuana that is legal under state
law has been successful. This leaves employees with few alternatives.
An employee who has lawfully obtained a medical license under state law and who uses
medical marijuana in accordance with their license may still have their employment terminated
for medical marijuana use simply for testing positive. As a result, employees are left with two
choices: They can either refrain from using medical marijuana altogether, which may impact
their ability to treat their disability, or they can use medical marijuana and risk having their
employment terminated as a result of a positive drug test.
IV.
Add Legalized Recreational Marijuana to the Pot and Stir
In addition to the states that have legalized medical marijuana, there are currently four states
that have also legalized recreational marijuana: Alaska, Colorado, Oregon and Washington.
However, similar to medical marijuana regulations, the recreational marijuana regulations in all
four states reiterate that an employer does not have to accommodate or permit marijuana use by
employees.
a. Recreational marijuana regulations.
In Alaska76, the ballot, which was passed in 2014, states, “The bill states that it is not
intended to require an employer to allow marijuana use, transportation, possession, sale, growth,
or transfer, or prevent an employer from prohibiting these activities.” Colorado’s regulation,
also passed in 2014, states, “Nothing in this section is intended to require an employer to permit
or accommodate the use, consumption, possession, transfer, display, transportation, sale or
growing of marijuana in the workplace or to affect the ability of employers to have policies
restricting the use of marijuana by employees.” [Emphasis added.] Oregon’s77 regulation,
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passed in 2015, states, “Nothing in these rules exempts a licensee or licensee representative from
complying with any other applicable state or local laws,” while Washington’s78 regulation is
simply silent on the issue of marijuana in the workplace.
Thus, recreational marijuana use poses the same issues as medical marijuana use: an
employee may have their employment terminated for testing positive without any evidence that
they used, possessed or were impaired in the workplace. None of these states have taken any
measure to protect employees who use recreational marijuana from reprisal from their employer
despite the fact that these states are profiting from the sale and use of recreational marijuana.
b. Why legalization or recreational marijuana has little effect on wrongful
discharge lawsuits for positive drug tests in these states.
A closer look at the recreational marijuana laws in Alaska, Oregon and Washington (all
in the Ninth Circuit) reveals that legalization of recreational marijuana will have little to no
effect on an employers ability to discharge employees who test positive for marijuana in these
states. The state of Alaska79 has posted a statement on the official state website that employers
“may prohibit” the possession, consumption and/or use (among other things) of marijuana on or
in the employer’s property.
The Oregon80 state website posted on their state website that the recreational marijuana
regulation “does not affect existing employment law. Employers who require drug testing can
continue to do so.”
In Washington81, the state website has posted similar language that employers “may still
conduct drug testing at their discretion,” but also includes a statement on federal law prohibition.
Specifically, that “Washington’s system of legalized marijuana does not preempt federal law,”
and that residents involved in “marijuana production /retailing could still be subject to
prosecution if the federal government chooses to do so.”
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Colorado82 has similar language posted on their state website, including that employers
can prohibit the use, consumption and/or possession of marijuana in the workplace, as well as,
“enact policies restricting the use of marijuana by employees.”
This is a sobering thought: states have legalized recreational marijuana while
simultaneously recognizing that employers do not have to accommodate marijuana use by
employees. Indeed, all four states that have enacted legislation to make recreational marijuana
legal have provided no protection for employees who choose to use marijuana legally under state
law. In other words, employers in all four states can continue to maintain drug testing policies
prohibiting the use of recreational marijuana as a federally illegal drug despite the fact that state
legislation has made it legal for employees to use. Further, like medical marijuana, the
presumption is that employees can be disciplined or fired based solely on a positive drug test
despite the fact that the employee has not used at work and was not under the influence in the
workplace.
c. Pile it on: States where legalization of recreational use was on the ballot for
November 2016.
This November, five more states had ballot initiatives proposing to legalize recreational
marijuana, including Massachusetts, Maine, Arizona, California and Nevada.83 The ballots
passed in Massachusetts84, California85, Nevada86, and Maine87. However, the ballot was
defeated in Arizona, where the state spent millions of dollars in a campaign against marijuana.88
Remarkably, Massachusetts was the first of the two Eastern states to pass recreational marijuana
legislation and California is the most populous state in the nation to pass recreational marijuana
legislation thus far. However, similar to Alaska, Oregon, Washington and Colorado, where
recreational marijuana is already legal, none of the four states that just passed recreational
marijuana have any legislation protecting employees from termination for positive drug tests.
19
For example, in California89, the ballot states that the Act “shall not be construed or
interpreted to amend or affect...[t]he ability of public and private employers to maintain, enact,
and enforce workplace policies prohibiting or restricting actions or conduct otherwise permitted
under this Act in the workplace.”90
In Maine’s ballot, the language is very similar. § 2454 states, “This chapter may not be
construed to require an employer to permit or accommodate the use, consumption, possession,
trade, display, transportation, sale or growing of cannabis in the workplace. This chapter does
not affect the ability of employers to enact and enforce workplace policies restricting the use of
marijuana by employees or to discipline employees who are under the influence of marijuana in
the workplace.”91
Likewise, Massachusetts does not require employers to accommodate recreational
marijuana. Section 2 of Maine’s ballot states, “This chapter shall not require an employer to
permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not
affect the authority of employers to enact and enforce workplace policies restricting the
consumption of marijuana by employees.”92
Nevada’s ballot follows the other Ninth Circuit states that have already legalized
recreational marijuana. Nevada’s ballot states that the regulation will not prohibit a private
employer from “maintaining, enacting, and enforcing a workplace policy prohibiting or
restricting actions or conduct” otherwise permitted under “this act…”93
Notably, Maine distinguishes between medical marijuana and recreational marijuana in
that Maine prohibits an employer from discriminating against an employee for using medical
marijuana in accordance with state law. However, regardless of whether the employee uses
medical marijuana or recreational marijuana, Maine does not require an employer to
20
accommodate or permit such use. Accordingly, none of the four states that have just legalized
recreational marijuana will protect employees from being disciplined or fired if they test positive
for marijuana in violation of an employer’s drug test policy. Now, more than ever, it is
important that states that legalize marijuana should also include legislation or regulation with
respect to how employers treat marijuana in the workplace in order to protect their workforce,
including how employers should treat positive drug tests for marijuana when the state has
legalized marijuana for either medical or recreational purposes.
Don’t Light Up Yet: Why Future State Legalization of Medical and Recreational
Marijuana Will Have Little to No Effect On Current Employment Law.
V.
Future state legalization of medical and recreational marijuana is likely to follow the same
historical trend. Given that twenty-five states have legalized medical marijuana without
prohibiting an employer from discharging an employee who has a valid medical marijuana
license and tests positive for marijuana, it is likely then many more states will follow suit.
Further, to date, no state that has legalized recreational marijuana also prohibits an employer
from discharging an employee who uses recreational marijuana. Thus, in the future, any state
that chooses to protect employees by requiring employers to accommodate medical marijuana
use will not likely provide protection for employees when it comes to recreational marijuana use.
a. There’s still hope: Pending federal legislation could legalize, regulate and tax
marijuana.
Two bills were introduced to the House of Representatives on February 20, 2015, that
together would legalize, regulate, and tax marijuana at a federal level, effectively ending
prohibition at the federal level.94 The Regulate Marijuana Like Alcohol Act95 would remove
marijuana from the Controlled Substances Act schedules and transfer oversight of marijuana
from the DEA to the Bureau of Alcohol, Tobacco, Firearms and Explosives.96 It would also
21
regulate marijuana in a manner similar to alcohol.97 This bill is currently before the
Subcommittee on Trade and is pending.98
The second bill, Marijuana Tax Revenue Act of 2015, 99 creates a federal excise tax for sales
of regulated marijuana.100 This bill has been referred to the House Committee on Ways and
Means and is currently pending as well.101
If both bills are passed, federal law will no longer prohibit marijuana, which means states
will be free to choose whether or not they want to legalize medical and/or recreational marijuana.
This will have a domino effect on the legal system because federal courts will no longer look to
preemption as a reason to deny wrongful termination and disability discrimination lawsuits on
the basis of marijuana use. In addition, because marijuana would be legal under federal law,
courts and states would also have to reevaluate whether employers need to permit and
accommodate marijuana use under state law.
VI.
Short-Term Recommendations for Employers and Long-Term Recommendations
for Legislation
a. In the short term.
In the short term, states proposing to legalize medical and/or recreational marijuana
should include statutory protection for workers that prohibits employers from discriminating
against or disciplining employees that use medical or recreational marijuana so long as they are
not under the influence at work.
Employers should also revise their workplace drug policies as well in order to permit
employees who use medical or recreational marijuana to have a positive drug test without
repercussions so long as the employee is not under the influence at work. This means that
employers should treat marijuana like alcohol, meaning that, for the purposes of “zero tolerance”
22
drug policies, marijuana should be treated as legal and, therefore, not prohibited provided
employees are not under the influence at work.
Keeping in mind that metabolites can be found in the bloodstream for months after use,
employers could set a threshold amount of metabolites in the blood that equates to “under the
influence” for the purposes of employer drug policies. Notably, the National Highway Traffic
Safety Administration has reported that, in blood tests, it is “difficult to establish a relationship
between a person’s THC blood or plasma concentration and performance impairing effects,”
because concentrations are “very dependent on pattern of use as well as does.”102 With respect
to urine tests, TSA states that, “Detection of total THC metabolites in urine, primarily THCCOOH-glucuronide, only indicates prior THC exposure. Detection time is well past the window
of intoxication and impairment.”103
However, even if impairment is difficult to determine, and although it is more invasive,
blood tests are more exact.104 As a result, employers who wish to use drug tests to establish
impairment in the workplace should consider using only blood tests. Employers should also
ensure they follow state law limits in motor vehicle regulations with respect to the limits of
metabolites allowed in the blood, in order to establish impairment, until further research is
developed to determine what constitutes impairment for the purposes of employment.
For example, in Washington,105 the recreational marijuana regulation provides that a
person is guilty of driving under the influence of marijuana and within two hours after driving
has a THC concentration of 5.00 or higher in a blood analysis test. Thus, employees in
Washington who test positive during an employment drug test, and who also have a THC
concentration of 5.00 or higher within two hours after the test, would be considered under the
influence at work and subject to discipline per the employer’s policy, up to and including
23
termination. Amending legislation and employer drug policies in this fashion would, to some
extent, protect employees who lawfully use marijuana in accordance with state laws until further
research is conducted with respect establishing a relationship between the amount of metabolites
in a person’s blood and impairment on the job.
b. In the long term.
However, under the current legal climate, employers who do not wish to alter the drug
policies to accommodate the use of marijuana under state law can strategically try to remove
their case to federal court. In federal court, the result will always be the same: due to
preemption, employees will lose their wrongful discharge and disability discrimination cases
until marijuana is no longer illegal under federal law even if state regulations provide statutory
protection for workers. Nevertheless, even if employers cannot get to federal court, state courts
are deferring to federal law. Notably, there did not appear to be even one state or federal case
where an employee has been successful in wrongful discharge or disability claims related to
medical or recreational marijuana use compliant with state laws. Therefore, in the long term,
either federal law or state law will have to change in order to protect America’s workforce.106
Until the laws are reconciled, employees continue to remain at risk of losing their jobs without
legal recourse for testing positive for medical or recreational marijuana even if they are using
marijuana in accordance with state laws.
VII.
Conclusion
The current clash between federal law and state law leaves employees vulnerable because
employees have no legal recourse if their employment is terminated for use of medical or
recreational marijuana that is legal under state law. Employers currently have the upper hand
when it comes to enforcing drug policies that prohibit the use of medical or recreational
24
marijuana for any reason, regardless of whether an employee is under the influence or impaired
at work. However, given the recent trend in state legalization of both medical and recreational
marijuana, employers may soon find themselves out of employees if they do not amend their
drug policies to accommodate marijuana in accordance with state law.107 In fact, according to a
recent Gallop Poll, a record high of sixty percent of Americans now support an end to pot
prohibition.108 Until the pending federal legislation is passed, employers who do not want to lose
the majority of their workforce should amend their policies to provide employees with the ability
to use marijuana in accordance with state law so long as employees do not use, possess or are
under the influence of marijuana in the workplace. This will protect both employees, who will
not have their employment terminated, as well as employers, who do not want to lose good
employees simply because they choose to use marijuana in accordance with state law.
Footnotes
19 Williston on Contracts, Williston on Contracts, § 54:39 Employment at will, generally (4th
ed. 2016).
1
Arthur P. Murphy, Kier B. Wachterhauser and Sarah A. Catignani, A Hazy Situation –
Marijuana and the Workplace: Current law and Challenges Facing Today’s Employers, 20 No.
5 HR Advisor: Legal & Practical Guidance ART 3, at 1 (Sept./Oct. 2014).
2
3
Id.
4
Id.
5
Id.
6
Loder v. City of Glendale, 59 Cal.Rptr.2d 696, 927 P.2d 1200 (Cal. 1997).
Arthur P. Murphy, Kier B. Wachterhauser and Sarah A. Catignani, A Hazy Situation –
Marijuana and the Workplace: Current law and Challenges Facing Today’s Employers, 20 No.
5 HR Advisor: Legal & Practical Guidance ART 3, at 2 (Sept./Oct. 2014).
7
8
Id.
25
Alexis Gabrielson, The “Right To Use” Takes Its First Hit: Marijuana Legalization and the
Future of Employee Drug Testing, 18 Employee Rts. & Emp. Pol’y J. 241, 247 (2014).
9
10
Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New
Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and
Washington.
11
National Conference of State Legislation, State Medical Marijuana Laws (Sept. 24, 2016,
11:22 AM), http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.
12
Alabama, Florida, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North
Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin and
Wyoming.
13
National Conference of State Legislation, State Medical Marijuana Laws (Sept. 24, 2016,
11:22 AM), http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.
Kayla Goyette, Recreational Marijuana and Employment: What Employees Don’t Know Will
Hurt Them, 50 Gonz. L. Rev. 337-341 (2014-2015).
14
15
David Evans, Drug Testing Law, Technology and Practice, 1 Drug Testing Law Tech. &
Prac. § 1:97 (March 2016 Update), and see also David Evans, Drug Testing Law, Technology
and Practice, 1 Drug Testing Law Tech. & Prac. § 1:65 (March 2016 Update).
Kayla Goyette, Recreational Marijuana and Employment: What Employees Don’t Know Will
Hurt Them, 50 Gonz. L. Rev. 337-341 (2014-2015).
16
Arthur P. Murphy, Kier B. Wachterhauser and Sarah A. Catignani, A Hazy Situation –
Marijuana and the Workplace: Current law and Challenges Facing Today’s Employers, 20 No.
5 HR Advisor: Legal & Practical Guidance ART 3, at 2 (Sept./Oct. 2014); see also Alexis
Gabrielson, The “Right To Use” Takes Its First Hit: Marijuana Legalization and the Future of
Employee Drug Testing, 18 Employee Rts. & Emp. Pol’y J. 241, 247 (2014), and Kayla Goyette,
Recreational Marijuana and Employment: What Employees Don’t Know Will Hurt Them, 50
Gonz. L. Rev. 337-341 (2014-2015).
17
18
21 C.F.R. § 1308.35 (2003).
19
Memorandum from David W. Ogden, Deputy Attorney General, to Selected United States
Attorneys, Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana
(Sept. 23, 2016, 1:00 PM), https://www.justice.gov/opa/blog/memorandum-selected-united-stateattorneys-investigations-and-prosecutions-states.
20
Jeremy Meyer & John Ingold, Feds raid Denver-area marijuana dispensaries, grow operations,
2 Homes, The Denver Post (Sept. 23, 2016, 1:20 PM),
26
http://www.denverpost.com/2013/11/21/feds-raid-denver-area-marijuana-dispensaries-growoperations-2-homes/.
21
Kay Lazar & Shelley Murphy, Lawmakers Slam DEA for Targeting Mass. Doctors, The
Boston Globe (Sept. 23, 2016, 1:50 PM), https://www.bostonglobe.com/lifestyle/healthwellness/2014/06/11/congressmen-fault-dea-for-intimidating-massachusettsdoctors/MOQlJBKtCeKFI6nK6RQJ6O/story.html.
22
Ryan J. Reilly & Matt Ferner, House Blocks DEA From Targeting Medical Marijuana, The
Huffington Post (Sept. 23, 2016, 2:00 PM), http://www.huffingtonpost.com/2014/05/30/deamedical-marijuana-house-vote_n_5414679.html.
23
Memorandum by James M. Cole, Deputy Attorney General, to all United States Attorneys,
Justice Department Announces Update to Marijuana Enforcement Policy, (Sept. 23, 2016, 2:20
PM), https://www.justice.gov/opa/pr/justice-department-announces-update-marijuanaenforcement-policy.
24
Id.
Evan Halper, Congress quietly ends federal government’s ban on medical marijuana, Los
Angeles Times (Sept. 23, 2016, 2:25 PM), http://www.latimes.com/nation/la-na-medical-pot20141216-story.html.
25
26
Department of Justice, Drug Enforcement Agency, Denial of Petition to Initiate Proceedings
to Reschedule Marijuana, Docket No. DEA-427 (Sept. 23, 2016, 2:35 PM),
http://federalregister.gov/a/2016-17960.
27
Carrie Johnson, Platform Check: Presidential Candidates On Legalizing Marijuana, Nevada
Public Radio (Nov. 20, 2016, 11:11 AM), http://www.npr.org/2016/09/08/493157980/platformcheck-presidential-candidates-on-legalizing-marijuana.
28
Id.
29
Id.
30
Id.
31
Id.
32
Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii,
Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New
York, North Carolina, Oklahoma, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming.
27
33
Alaska Legal Resource Center, Alaska Statutes, Title 17, Chapter 37, Medical Uses of
Marijuana (Sept. 25, 2016,m 1:15 PM),
http://touchngo.com/lglcntr/akstats/Statutes/Title17/Chapter37.htm.
34
California Legislative Information, AB-266, Medical marijuana (Sept. 25, 2016, 1:30 PM),
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB266.
35
Colo. Const. art XVIII, § 14.
36
H.B. 1, Gen. Assemb., Reg. Sess. (Il. 2014).
37
Mass. Code § 725.650 (A), 725.650 (B) (2013).
38
S.B. 423, 2011 Leg., 62nd Sess. (Mt. 2011).
39
H.B. 573, 2013 Leg., 2013 Sess. (NH 2013).
40
41
42
S.B. 119, 2008 Leg., 213 Sess. (NJ 2009).
N.Y. Code Rules & Regs, § 1004.18 (a) (1) (2013).
Sub. H.B. 523, 131st Gen Assemb., Reg. Sess. (Oh. 2016).
43
Ore. Rev. Stat. § 475B.413 (2015).
44
S.B. 3, 2016 Gen. Assemb., 2015 Sess. (Pa. 2016).
45
S.B. 185, 2009 Gen Assemb., Jan. Sess. (RI 2009).
46
S.B. 5073, 62nd Leg., 2011 Reg. Sess. (Wa. 2011).
47
Arizona State Legislature, 36-2802, Arizona Medical Marijuana Act; limitations, (Sept. 25,
2016, 1:17 PM),
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/36/02802.htm&Title=36&DocType=A
RS.
48
S.B. 923, Gen. Assemb. (Md. 2014).
49
S.B. 862, 1999 Leg., 20th Sess. (Hi. 1999).
50
S.B. 523, 48th Leg., 1st Sess. (NM 2007).
51
S.B. 17, 2011 Gen. Assemb., June Sess. (Vt. 2011).
52
Nev. Rev. Stat. § 453A.800 (2013).
28
53
H.B. 5389, 2012 Leg., Feb. Sess. (Ct. 2012).
54
S.B. 17, 146th Gen. Assemb., Reg. Sess. (De. 2011).
55
H.P. 951, 2011 Leg., 125th Sess. (Me. 2011).
56
Mich. Medical Marijuana Act § 333.26424, Sec. 4. (a) (2008).
57
Minn. Stat. Ch. 311, § 12, Subd. 3. (2014).
58
Id.
59
Zeese, Drug Testing Legal Manual § 3:25 (2d ed.).
60
The Sixth Circuit includes Michigan, Kentucky, Michigan, Ohio and Tennessee.
61
Casias v. Wal-Mart Stores, Inc., 764 F.Supp.2d 914-16, 921-22, 925-26 (W.D. Mich. 2011).
62
Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 431, 435-37 (6th Cir. 2012).
63
The Ninth Circuit encompasses, Washington, Alaska, California, Hawaii, Idaho, Montana,
Nevada and Oregon.
64
Roe v. TeleTech Customer Care Management (Colorado), LLC, 171 Wash.2d 736, 257 P.3d
586, 588, 593, 597 (Co. 2011).
65
Swaw v. Safeway, Inc., 2015 WL 7431106, Not Reported in F.Supp.3d (2015).
66
Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920, 174 P.3d 200, 386, 387, 389,
392-93, 401 (Cal. 2008).
67
Shepherd v. Kohl’s Department Stores, Inc., 2016 WL 4126705, 1-3, 5-7, Slip Copy (E.D.
Cal. 2016).
68
Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Or. 159, 230 P.3d
518, 520, 521, 524, 529, 533 (Or. 2010).
69
Johnson v. Columbia Falls Aluminum, Co., LLC, 350 Mont. 562, 213 P.3d 789, Unpublished
Decision (Mont. 2009).
70
Mont. Code Ann. § 39-2-904 (2015).
71
Colorado, which is in the Tenth Circuit, also includes Kansas, New Mexico, Oklahoma, Utah
and Wyoming.
29
72
Coats v. Dish Network, L.L.C., 303 P.3d 147, 149, 150-51 (Mont. 2013).
73
Curry v. MillerCoors, Inc., 2013 WL 4494307, 1, 3, Not Reported in F.Supp.2d (Colo. 2013).
74
Slaughter v. John Elway Dodge Southwest/Autonation, 107 P.3d 1165, 1170
(Colo.App.2005).
75
Garcia v. Tractor Supply Company, 154 F.Supp.3d 1225, 1228-30 (N.M. 2016).
76
Ballot Measure No. 2, 13PSUM, An Act to Tax and Regulate the Production, Sale, and Use
of Marijuana (2014).
77
Ore. Rev. Stat. § 475B.025, 475B.070, 475B.090, 475B.100, 475B.110 (2016).
Initiative Measure No. 502, Bill Request – Code Reviser’s Office, Filed July 8, 2011 (Wash.
2011).
78
79
State of Alaska, Dept. of Commerce, Community, and Economic Development, Alcohol &
Marijuana Control Office, Marijuana FAQs (Spet. 29, 2016, 8:06 PM),
https://www.commerce.alaska.gov/web/amco/MarijuanaFAQs.aspx.
80
Ore. Liquor Control Commission, Recreational Marijuana Frequently Asked Questions,
Oregon State (Sept. 29, 2016, 7:49 PM),
http://www.oregon.gov/olcc/marijuana/Pages/Frequently-Asked-Questions.aspx#Personal_Use.
81
Washington State Liquor and Cannabis Board, FAQs on I-502, Washington State (Sept. 29,
2016, 12:51 PM), http://www.lcb.wa.gov/mj2015/faqs_i-502.
82
Co. Official State Web Portal, Retail Marijuana Use Within City of Denver, Business &
Private Property Owners (Sept. 29, 2016, 7:55 PM),
https://www.colorado.gov/pacific/marijuanainfodenver/business-private-property-owners-0.
Ben Gilbert, 5 states could legalize recreational marijuana use this year — here's what we
know, Business Insider, Law & Order (Sept. 24, 2016, 10:54 AM),
http://www.businessinsider.com/marijuana-states-legalize-recreational-weed-2016-9/#1massachusetts-1.
83
84
Haven Daley, Voters in Massachusetts approve legalizing recreational marijuana, The
Boston Globe (November 9, 2016, 10:38 AM),
http://www.boston.com/news/politics/2016/11/08/voters-in-massachusetts-approve-legalizingrecreational-marijuana.
85
Los Angeles Times, California Election Results: Prop 64 Passes; Ballot Initiative Legalizes
Recreational Use of Marijuana, KTLA 5 News (Nov. 9, 2016, 11:00 AM),
http://ktla.com/2016/11/08/california-proposition-64-ballot-initiative-to-legalize-recreationaluse-of-marijuana/.
30
86
CBS News, Live Updates: Calif., Mass. Voters approve recreational marijuana, CBS/AP
Politics (Nov. 9, 2016, 11:03 AM), http://www.cbsnews.com/amp/news/live-updates-statevoting-results-on-recreational-marijuana-pot-legalization-election-day/.
87
Rick Stevens, Recreational Marijuana Passes in Massachusetts, Hartford Courant (Nov. 9,
2016, 11:06 AM), http://www.courant.com/politics/elections/hc-legal-marijuana-referendums20161108-story.html.
88
CBS News, Live Updates: Calif., Mass. Voters approve recreational marijuana, CBS/AP
Politics (Nov. 9, 2016, 11:03 AM), http://www.cbsnews.com/amp/news/live-updates-statevoting-results-on-recreational-marijuana-pot-legalization-election-day/.
89
California Statewide Ballot Initiative, The Control, Regulate, and Tax Cannabis Act of 2016,
§ 26009 (Ca. 2016).
90
California Statewide Ballot Initiative, The Control, Regulate, and Tax Cannabis Act of 2016,
§ 26009 (Ca. 2016).
91
Me. Rev. Stat. Ch. 417, Marijuana Legalization Act, § 1 (Me. 2016).
92
Ma. Recreational Marijuana Petition, An Initiative Petition For A Law Relative To The
Regulation And Taxation Of Marijuana, § 2 Limitations (Ma. 2016).
93
State of Nev. Initiative Petition Statewide Mandatory Measure, Initiative to Regulate and Tax
Marijuana, § 4 Limitations (Nev. 2016).
94
J. Herbie DiFonzo and Ruth C. Stern, Divided We Stand: Medical Marijuana and
Federalism, Health Lawyer, 27 No. 5 Health Law. 17 (June 2015).
95
Regulate Marijuana Like Alcohol Act, H.R. 1013, 114th Cong. (2015-2016).
96
Id.
97
Id.
98
Supra.
99
Marijuana Tax Revenue Act, H.R. 1014, 114th Cong. (2015-2016).
100
Id.
101
Supra.
31
102
National Highway Traffic Administration, Cannabis/Marijuana, Drugs and Human
Performance Fact Sheets (Nov. 6, 2016, 1:12 PM),
http://www.nhtsa.gov/PEOPLE/INJURY/research/job185drugs/cannabis.htm.
103
Id.
104
Neither the National Highway Traffic Administration nor the Center for Disease Control
(CDC) addresses the use of hair tests in detecting marijuana metabolites. See Supra and CDC,
Urine Testing for Detection of Marijuana: An Advisory, MMWR Weekly (Nov. 9, 2016, 11:20
AM), http://www.cdc.gov/mmwr/preview/mmwrhtml/00000138.htm. However, the DOJ office
of Justice Programs issued a report that hair analysis is “subject to potential contamination,” and
“can produce biased results,” because some ethnic groups with dark pigmented hair, such as
African-Americans, absorb drugs more readily than blonde or bleached hair. Jerome J. Robinson
and James W. Jones, Drug Testing in a Drug Court Environment: Common Issues to Address,
U.S. Dept. of Justice, Office of Justice Programs (May 2000). Employers may still choose to use
hair tests although blood tests appear to be the most accurate with respect to marijuana
metabolites.
Initiative Measure No. 502, Bill Request – Code Reviser’s Office, Filed July 8, 2011, § 33.
RCW 46.61.502 (Wash. 2011).
105
106
Elizabeth Rodd, Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana
Users Protection From Workplace Discrimination, 55 B.C.L. Rev. 1759 (2014).
107
Rob Hotakainen, Punch the clock and pass the brownies, The State (Oct. 22, 2016, 10:00
AM), http://www.thestate.com/news/nation-world/national/article109725787.html.
108
Id.
32
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