9/20/2015
Emerging Employment Issues From
Continued Marijuana Legalization
October 9, 2015
Brad Bakker
© 2015 Armstrong Teasdale LLP
© 2015 Armstrong Teasdale LLP
Emerging Employment Issues From Continued
Marijuana Legalization
Four Key Areas We’ll Cover Today:
§ Review of Existing Case Law and State Statutes Regarding
Marijuana Usage by Employees
§ Likely Issues With Marijuana Legalization and the Americans
With Disabilities Act
§ Areas Where Employers Will Be Able to Maintain Strong Anti-
Marijuana Policies
§ Possible Solutions for Employers to Avoid Liability for
“Alternative” Employees
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A Brief Biochemistry Lesson…
§ Ordinarily, most drug testing facilities use a urinalysis test
that is not actually looking for THC (the “active” ingredient in
marijuana), but instead is testing for THC-COOH (metabolite
that the body breaks THC into and stores in fat)
§ Because it is stored in fat, THC-COOH can remain in the body
for days or weeks after an individual has stopped using
marijuana, depending on how heavily/frequently they use it
§ This has made testing whether a person is “high”
on the job extremely difficult
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A Brief Biochemistry Lesson…
§ Blood tests are more expensive, but actually test for the
presence of the drug itself, and typically only detect for
around 24-48 hours of usage depending on the testing
threshold used (the more frequent the usage, the longer the
detection range)
§ Saliva testing is much more uncommon (and less proven), but
will only detect within the last 24 hours
§ There is currently no highly reliable test for whether someone
is actively impaired by marijuana – better testing methods
are being actively sought
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Why is this Important to Employers?
§ The political push for relaxation of marijuana laws shows no
signs of abating, and eventually it is likely the federal
government will at least decriminalize marijuana
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Why is this Important to Employers?
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Why is this Important to Employers?
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Major Decisions Involving
Marijuana and Employers
§ Gonzales v. Raich, 545 U.S. 1 (2005) – The United States Supreme
Court held that Congress was within its power to criminalize the
production and use of home-grown cannabis, regardless of state
law and whether the cannabis would cross state lines.
§ Raich had argued that because she used only homegrown
marijuana, Congress could not regulate it under the Interstate
Commerce Clause of the U.S. Constitution
§ Although this decision did not involve employers, it effectively
assisted their defenses because the Supreme Court essentially
stated that until federal law changes on cannabis, the federal
criminalization will trump state laws
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Major Decisions Involving
Marijuana and Employers
Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012)
§ Joseph Casias was an employee of Walmart who had an inoperable brain
tumor and cancer.
§ Received a prescription for medical marijuana to treat his pain under the
Michigan Medical Marihuana Act
§ Mr. Casias failed a drug test that he was given after a workplace injury,
but contended that he had never smoked marijuana at work or come to
work under the influence of the drug
§ Walmart terminated his employment for testing positive, and Mr. Casias
sued for wrongful termination in violation of the MMMA
§ Unknown whether Mr. Casias was actively impaired or just had residual
drugs in his system
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Major Decisions Involving
Marijuana and Employers
§ Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012)
• Per the MMMA – “A qualifying patient who has been issued and
possesses a registry identification card shall not be subject to arrest,
prosecution, or penalty in any manner, or denied any right or privilege,
including but not limited to civil penalty or disciplinary action by a
business or occupational or professional licensing board or bureau, for
the medical use of marihuana in accordance with this act....”
§ Despite that proscription, the Sixth Circuit found that the MMMA did not
regulate private employment, but only prohibited adverse actions by the
state
§ Because it did not regulate private employers, the Sixth Circuit dismissed
Mr. Casias’ claim
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Major Decisions Involving
Marijuana and Employers
James v. Costa Mesa, 700 F.3d 394 (9th Cir. 2012)
§ The plaintiffs were disabled medical marijuana patients who
sued the City of Costa Mesa for shutting down dispensaries
§ They claimed that because marijuana was legal in California
and the federal government had allowed medical marijuana
in Washington, D.C., the use of medical marijuana was
protected by the Americans with Disabilities Act
§ The district court and appellate court disagreed, specifically
holding that the ADA did not protect medical marijuana use
because it was still prohibited by the Federal Controlled
Substances Act
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Major Decisions Involving
Marijuana and Employers
§ Other states that have considered the issue have come down
on the side of employers:
• Johnson v. Columbia Falls Aluminum Co., 350 Mont. 562, 2009 WL 865308, at
*2 (Mont. 2009) (“The [Medical Marijuana Act] MMA specifically provides that
it cannot be construed to require employers ‘to accommodate the medical use
of marijuana in any workplace.’”)
• Roe v. TeleTech Customer Care Mgmt., LLC, 152 Wash. App. 388, 216 P.3d 1055
(2009) (“[I]t is unlikely that voters intended to create such a sweeping change
to current employment practices [under the Medical Use of Marijuana Act].”)
• Ross v. RagingWire Telecomms., Inc., 42 Cal.4th 920, 70 Cal.Rptr.3d 382, 174
P.3d 200, 203 (2008) (“Nothing in the text or history of the Compassionate Use
Act [California's medical marijuana law] suggests the voters intended the
measure to address the respective rights and duties of employers and
employees.”)
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Major Decisions Involving
Marijuana and Employers
Coats v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (Co. June
15, 2015)
§ Coats was a 34 year old quadriplegic user of medical
marijuana
§ He had never been accused or suspected of being under the
influence on the job, but tested positive during a random
drug test
§ Colorado’s Medical Marijuana Amendment stated that
employers are not required to “accommodate the medical
use of marijuana in any work place.”
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Major Decisions Involving
Marijuana and Employers
Coats v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (Co. June
15, 2015)
§ Despite that, Coats argued that the Medical Marijuana
Amendment made off-hours use of marijuana “lawful” under
the Colorado “lawful activities statute.”
• The Colorado lawful activities statute prohibits employers
from terminating employees “due to that employee’s
engaging in any lawful activity off the premises of the
employer during nonworking hours” unless the activity is
reasonably related to the employee’s employment
activities
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Major Decisions Involving
Marijuana and Employers
Coats v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (Colo.
June 15, 2015)
§ The Colorado Supreme Court determined that because marijuana
cannot lawfully be used under the Federal Controlled Substances
Act, it was not a “lawful” activity that was protected under the
statute.
§ The Court declined to address the issue of whether Colorado’s
Medical Marijuana Amendment deems medical marijuana use
“lawful” by conferring a right to such use.
• Which raises the question, what if marijuana were carved out
of the Controlled Substances Act or the statute had specified
lawful under state law?
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Other Significant State Laws
Arizona
§ Medical Marijuana Act there prohibits employer from
discriminating against an employee because he/she is a registered
medical marijuana user, but allows for testing and discharge of
employees impaired at work – Includes other carve outs
New York
§ Recently passed medical marijuana statute provides that certified
patients are deemed to be disabled under the New York Human
Rights Law
Numerous other states have restrictions on when employers can
conduct drug testing of employees
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Likely Issues with Marijuana Legalization and
the Americans With Disabilities Act
§ The ADA states that employers must make “reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability who is
an applicant or employee, unless such [employer] can
demonstrate that the accommodation would impose an
undue hardship on the operation of the business of [the
employer].”
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Likely Issues with Marijuana Legalization and
the Americans With Disabilities Act
§ The ADA also allows employers to:
• Prohibit the illegal use of drugs and the use of alcohol at
the workplace;
• Require employee to not be under the influence of
alcohol or drugs in the workplace;
§ So what happens if marijuana is no longer
an illegal drug under federal law?
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Likely Issues with Marijuana Legalization and
the Americans With Disabilities Act
§ In the future, employers of certain types of employees will likely
have to accommodate medical marijuana use, at least for off-hours
work
• It will depend on what is an “undue hardship” to an employer
• If a person’s job involves them sitting at a desk all day and not
posing a safety risk, what is the hardship to the employer if
they use marijuana in their off-hours?
• On the other hand, if there is the potential for an individual to
cause serious harm to others if they use marijuana (ex: an oncall employee who drives) or severely damage a business
(federal contractor), a court will likely find that is an undue
hardship
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Likely Issues with Marijuana Legalization and
the Americans With Disabilities Act
§ As state medical marijuana laws proliferate and are
amended, many (such as the recent New York medical
marijuana statute) will likely recognize bona fide medical
marijuana patients as disabled under state human rights
laws.
§ This may lead to differences as to
whether someone is a qualified
individual with a disability under
state vs. federal law
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Likely Issues with Marijuana Legalization and
the Americans With Disabilities Act
§ The big issue will likely be “impairment”
• How do you tell if someone is actually impaired on the job?
• Will raise issues with testing, reliability, and thresholds for
a “positive” test
• Possible fact questions for
courts reviewing terminations
based on drug tests
© 2015 Armstrong Teasdale LLP
Likely Issues with Marijuana Legalization and
the Americans With Disabilities Act
§ “Impairment”
• Extremely frequent users may test positive no matter
what under current testing methods
• While scientific studies have shown that most behavioral
and physiological effects return to baseline levels within
3-5 hours after use, some literature suggests residual
effects in specific behaviors up to 24 hours
• Hard to have a good per se impairment rule as with
alcohol at this time
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Areas Where Employers Will be Able to
Maintain Strong Anti-Marijuana Policies
§ Federal Contractors or Entities Receiving Federal Grants
• Required to comply with the Drug-Free Workplace Act
• The Drug-Free Workplace Act requires employers to maintain a drug-
free workplace, which requires policies prohibiting the distribution or
possession of any controlled substance (defined as any Schedule I
through V drug)
• This requirement is unlikely to change anytime soon, as even if
marijuana is decriminalized, it will likely still be a Scheduled drug
under federal law at least for the foreseeable future
• Many state medical marijuana laws have a specific exemption for
federal contractors
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Areas Where Employers Will be Able to
Maintain Strong Anti-Marijuana Policies
§ Dangerous Jobs
• Courts are not going to find that you have to allow an
employee to smoke up while driving a bulldozer
• The question will be marginal jobs – where someone
occasionally might have to drive on the job
− May need to consider reasonable accommodations if such
rare duties are not part of the essential functions of an
employee’s job
§ Other Jobs That Might Result in Liability to the Employer
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Possible Solutions for Employers to Avoid
Liability for “Alternative” Employees
§ Some Employers May Not Want to Know What Their Employees Are Doing
• You don’t want to terminate good employees due to a positive drug
test, but you might have to in order to apply policies uniformly
• Testing can undermine morale
§ Use a “Safety Sensitive” Designation – Update job descriptions and
essential functions
§ Update Drug Policies
• Delineate testing in only particular situations such as post-accident
§ Review the states where you operate for possible issues
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Possible Solutions for Employers to Avoid
Liability for “Alternative” Employees
§ Some state laws are already out in front on this issue:
• In Arizona, employers are prohibited from discriminating
against an employee because he or she is a registered
medical marijuana user, but makes exemptions for:
• Employers who would lose a monetary or license-related
federal benefit (e.g., federal contractors)
• Safety sensitive positions such as mining or transportation
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Possible Solutions for Employers to Avoid
Liability for “Alternative” Employees
§ Important for employers to get out in front of this issue given
how rapidly the laws are changing
§ Have a sensible drug testing program that makes sense for
your company and your employees
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Questions & Answer
For further questions, please feel free to contact me at:
Brad Bakker
314.342.8069
bbakker@armstrongteasdale.com
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