In the age of medical marijuana, will zero-tolerance drug policies go up in smoke?

Issue February 2015 By Tracey E. Spruce and Kara J. Johnson

Drug-free workplace policies have stood on firm legal ground in Massachusetts for many years, but in the age of medical marijuana, the landscape may be changing.

There is a robust national trend towards legalizing marijuana for medicinal purposes, as well as an expanding movement to decriminalize its recreational use.1 This expansion may be fueled by a 2013 Department of Justice guidance stating that the federal government will not prioritize prosecution of individual use of medical or recreational marijuana. And as part of a spending bill passed in December, 2014 and signed by President Barack Obama, the U.S. Congress prohibited certain federal agencies from expending federal funds to prevent the implementation of state (or D.C.) laws allowing medical marijuana. There remains debate about whether this change in federal law is permanent, and it does not make medical marijuana legal under federal law, but the move signals a significant shift in perspective by federal lawmakers.

These changes do not mean employers must tolerate a new kind of "smoking break," however. Not all marijuana use statutes contain workplace protection for employees, and marijuana remains illegal under the federal Controlled Substance Act. While Arizona, Delaware, Rhode Island,2 New York and Minnesota prohibit employers from discriminating against employees or applicants who use marijuana for medicinal purposes (unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations),3 the Massachusetts medical marijuana statute (Acts of 2012, Ch. 369) does not. Moreover, neither the law nor its governing regulations (105 C.M.R. 725.000) require employers to violate federal law or allow the on-site use of marijuana. The regulations further state that they do not limit the applicability of other law as it pertains to employers' rights. 105 C.M.R. 725.650.

Does this leave room for employers to maintain their zero-tolerance drug policies? Probably, but employers should recognize that unless they want to be a Massachusetts test case for how far such policies extend, best practice points toward analyzing each situation individually.

It is generally recognized that employers have a duty to maintain a drug-free workplace for safety-sensitive positions, such as heavy equipment operators, police officers and medical professionals. These employees can be subject to random drug testing, regular drug testing or targeted drug testing where an employee appears impaired at work. In most cases, medical marijuana legalization need not change employers' approach to these and similarly situated employees, against whom zero-tolerance policies should remain fully enforceable.

The rest of the picture may leave many employers justifiably dazed and confused. THC (marijuana's main psychoactive ingredient, which shows up in drug tests) can remain in a person's system for weeks after use. This means that employees who are lawfully registered to use medical marijuana can test positive even if they do not use marijuana regularly, or while at work, and are never impaired on the job. The question is whether enforcement of zero-tolerance drug policies is still lawful when an employer fires an employee who tests positive even if there is no negative workplace impact.

This issue soon will be decided in Colorado, viewed by many as a trailblazer for medical and recreational marijuana use. InCoats v. Dish Network, Inc., the Colorado Supreme Court must decide whether the plaintiff, Brandon Coats, was wrongfully terminated from his position as a customer service representative when he tested positive for marijuana in a random drug test. Coats, confined to a wheelchair after a debilitating car accident, uses medical marijuana to control seizures and muscle spasms he suffers due to his injuries.

Coats was never impaired at work and his employer does not allege otherwise; rather, he argues that his extramural medical marijuana use is protected by Colorado's Lawful Activities Statute. Dish Network disagrees, relying on its zero-tolerance drug policy and asserting that Coats' activities were not "lawful activities" since marijuana use is illegal under federal law. Two Colorado courts agreed with Dish Network, holding that the state's Lawful Activities Statute applies only to acts that are legal under both state and federal law. It remains to be seen what Colorado's highest court will do.4

Although Massachusetts does not have a Lawful Activities Statute, a victory for Dish Network could offer support for application of zero-tolerance drug policies in other contexts. For example, employees could assert claims under the Privacy Act (M.G.L. c. 214 § 1B), which grants individuals the right against "unreasonable, substantial or serious interference" with their privacy. What constitutes "private" employee conduct and "unreasonable, substantial or serious interference" by an employer is determined by a balancing test. Massachusetts courts generally support an employer's interest in a safe work environment and have held that this interest trumps employee privacy rights. Employers may be able to argue that employees who smoke marijuana off duty, even if permitted to do so under state law, are still violating federal law and impeding the employer's strong interest in maintaining a safe, drug-free workplace. Therefore, the employer's application of a zero-tolerance policy is not an unreasonable invasion of privacy.

Similarly, employers may be able to defeat claims of wrongful termination in violation of well-established public policy (i.e., the statutory right to use marijuana for medical purposes) by arguing that there is, in fact, no public policy protecting employees from termination under a private employer's zero-tolerance drug policy. Employers could point to federal law prohibitions on use as well as Massachusetts regulations stating that employers' rights under other laws are not limited. At least one jurisdiction offers support for this argument: the 6th Circuit, interpreting a medical marijuana statute similar to the one in Massachusetts, found that law did not restrict a private employer's ability to discipline employees for out-of-work medical marijuana use, and affirmed dismissal of the employee's wrongful termination claim. Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012).

Employers would be wise to tread more carefully, however, when faced with reasonable accommodation requests by employees for whom medical marijuana use is a prescribed treatment of a disabling condition. Presumably the requested accommodation would be an exception to the employer's zero-tolerance drug policy, allowing off-duty medical marijuana use. On one hand, the Americans with Disabilities Act (ADA), a federal statute, does not require employers to accommodate the use of illegal drugs, and since marijuana (for now) remains illegal under federal law, employers have no obligation to provide this accommodation. On the other hand, under the state analog to the ADA (M.G.L. c. 151B) employers may be required to provide this accommodation if the employee is, in fact, disabled,5 the accommodation enables the employee to perform her essential job functions, no alternative reasonable accommodation is available, and there is no undue hardship to the employer.6 As with all disability accommodation analyses, employers should examine each situation on its own merits and engage in the interactive process to determine whether a reasonable accommodation is required.

An employer could argue that requiring it to allow employees to use drugs that remain illegal under federal law is an undue hardship. However, the force of this argument is questionable given the difficulty of proving undue hardship in disability cases and the federal government's retreat from enforcing federal laws against medical marijuana in states where it is legal. In addition, an employer who merely "allows" off-duty medical marijuana use by refraining from disciplining its employees does not actually violate federal law; were that the case, employers might be on more solid footing to argue undue hardship.7

Depending on the particular facts, the best argument may be that even off-duty use of marijuana does not extinguish the possibility of impairment on the job, posing a risk of harm to the employer's business (including the safety of others and/or federal contract compliance) that is sufficient to establish undue hardship. In this regard, medical marijuana is similar to OxyContin or other narcotics: individuals may legally possess and use both with a doctor's written certification or prescription, but physician authorization is not a license for employees to be impaired while working.

For now, employers should review their drug policies, understand how legalization of medical marijuana in Massachusetts may impact the administration of those policies, stay on top of changes in federal law, and fine-tune as needed.8 Employers also should review any policies relating to off-duty conduct to the extent they may be implicated by medical marijuana use that is permitted under state law, but still prohibited under federal law. Finally, employers should review their disability accommodation processes to determine whether adjustments may be needed. Individualized evaluation of accommodation requests is still the best practice (especially when safety-sensitive positions are not at issue), and knee-jerk rejections of requests involving medical marijuana could result in an employer becoming a test case for Massachusetts. While lawsuits involving employee discipline for marijuana use across the country have tended to favor employers, there is no guarantee Massachusetts will follow suit.  

  1. Over the past several years, more than half of all states (23, plus the District of Columbia) have legalized some form of marijuana use.
  2. A lawsuit recently filed in Rhode Island is likely to test a provision in that state's law prohibiting employers from refusing to employ someone solely because he or she is registered to use medical marijuana. The defendant declined to hire an otherwise qualified candidate for an internship expressly because of her status as a medical marijuana user. She asserts claims for violation of Rhode Island's law against disability discrimination and the anti-discrimination provisions of the medical marijuana law.
  3. Medical marijuana laws do not pre-empt the federal Drug-Free Workplace Act, which prohibits federal contractors and grant recipients from allowing federally-illegal drug use, such as marijuana. It remains to be seen how and whether the recently passed legislation might change this.
  4. As of Jan. 5, 2015, a decision had not yet been handed down.
  5. Medical marijuana users in Massachusetts are not automatically considered "disabled" as a matter of law.
  6. Employers should be able to decline to provide this accommodation to disabled employees in safety-sensitive positions without violating disability discrimination laws. The argument is that employees in safety-sensitive positions who use marijuana are not qualified for the job because they pose a direct threat, i.e., significant risk of substantial harm to the health or safety of the employee or others, which cannot be eliminated or reduced by reasonable accommodation. The employer still should make an individualized judgment for each situation that arises; however, for most cases it seems unlikely that exemption from a clean drug screen requirement would effectively reduce the risk of harm.
  7. Cf. Tagore v. U.S., 735 F.3d 324, 329-330 (2013) (employer need not accommodate employee's religious practice by violating other laws); Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir.2000) (defendant not required to accommodate plaintiff's religious beliefs when doing so would require defendant to violate federal law, which creates undue hardship); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 830-31 (9th Cir.1999). ("[C]ourts agree that an employer is not liable under Title VII when accommodating an employee's religious beliefs would require the employer to violate federal or state law."). Although proving undue hardship is much easier for employers in the context of accommodating employees' religious beliefs, it is hard to imagine a court would require an employer to violate the law in order to provide reasonable accommodations to a disabled employee.
  8. Employers subject to the federal Drug-Free Workplace Act should take care that any policy changes do not place them in violation of their federal contract requirements.