Companies must walk a fine line between running afoul of state laws permitting use for medical purposes and risking liability for accidents caused by impaired performance at work
A lawsuit filed by the American Civil Liberties Union (ACLU) in November 2014 could set a new precedent pertaining to employers accommodating a worker’s medical condition that’s treated by medical marijuana.
The case claims a private company in Rhode Island violated the American Disabilities Act by refusing to hire a medical marijuana card-carrier even though the drug is a legal treatment in the state.
‘An employer has an obligation under the Americans with Disabilities Act (ADA) to accommodate employees with a disability but because marijuana is considered an illegal substance under federal law, its use is not protected under the ADA,’ says John DiNome, a labor and employment attorney and partner with Reed Smith. That could soon change depending on the outcome of the case.
‘In states where marijuana use is permitted, state law may create an obligation to accommodate its use as medicine and require an employer to consider a workplace transfer from a position that involves operation of machinery, for example,’ DiNome explains.
Other corporate governance dilemmas include employer liability created by employees whose ability to perform their jobs may be impaired by medical marijuana use, potentially causing them to harm themselves or others on the job. ‘Employers must examine safety first, whether there is any potential leave issue and if any kind of reasonable accommodation may be required,’ says Sandy Girifalco, an employment attorney and partner with Stradley Ronon Stevens & Young in Philadelphia. Although the use of medical cannabis is legal in states such as Colorado, Washington and California, employers with a national footprint are left with a hodgepodge of marijuana drug testing policies to work through.
‘Employers need to prohibit employees who are in safety-sensitive functions from conducting their job while under the influence of any substance,’ says Liza Getches, a partner and chair of the employment group at Moye White. ‘The Department of Transportation, for example, has random and periodic drug testing to prevent individuals who operate vehicles or heavy machinery from doing so under the influence.’
Until recently, employees could be fired from their jobs for testing positive. But terminating an employee who uses marijuana for legitimate medical conditions, such as glaucoma and epilepsy, has become a murky area since medical marijuana reform began sweeping the US last year. ‘If an accident occurs while the staffer is performing work for the company, liability can still attach to the employer even if marijuana use was off-site and off-hours,’ says Christina Stoneburner, a labor and employment attorney and partner with the Fox Rothschild law firm in Roseland, New Jersey. ‘The presence of marijuana alone may not prove liability for the accident.’
That’s because of the length of time that traces of marijuana can stay in the body. ‘An employee can be perfectly sober at work and not under the influence of marijuana despite having used it legally or medically during off-duty hours because based on body type and fat content marijuana will stay in a person's system for a certain time period,’ DiNome says.
For the moment, a company can avoid liability by requiring abstinence through a zero tolerance policy, but it may not be foolproof forever. An appellate court in Colorado, in Brandon Coats v. Dish Network, recently affirmed that an employee, who is a registered medical marijuana patient, can be discharged for violating an employer’s zero tolerance policy, even when the employee has never possessed, used or been under the influence of medical marijuana at work, and only used it in his or her home outside of working hours. The basis for that ruling was that despite Colorado’s having legalized the use of medical marijuana, it is still prohibited under federal law. An appeal of that ruling is currently pending before the Colorado Supreme Court.
‘Many employers are terrified they will be sued if they have zero tolerance policies and fire someone with a medical card,’ said Danielle Urban, a partner at Fisher & Phillips, who advises confused employers on marijuana-related human resource issues.
Other potential risks include a company’s right to discipline a worker who tests positive and privacy laws dictating whether employers even have the authority to inquire about medical marijuana use.
‘State privacy laws certainly may be applicable and prohibit such inquiries but since medical marijuana is still illegal federally, federal privacy laws will not prohibit [employers’] inquiries about medical marijuana use,’ said William Bogot, a corporate and regulatory attorney and partner with the Fox Rothschild law firm in Chicago. That’s because US Equal Employment Opportunity Commission’s (EEOC) guidance specifically notes that asking an employee about illegal drug use is not a prohibited medical examination. ‘While state law may protect certain employee use of marijuana, federal law does not and this creates some conflict that must be navigated,’ DiNome says.
The implications of worker medical marijuana use on corporate governance will continue to unfold as government leaders grapple with whether to legalize the drug on a federal level.
