The National Trial Lawyers
  • Home
    • Meet Our Team
    • Contact Us
    • Mission & Goals
    • FAQ
  • Webinars
  • News
  • Membership Directory
    • Top 100 Map – Civil Plaintiff
    • Top 100 Map – Criminal Defense
    • Top 40 Under 40 Map – Civil Plaintiff
    • Top 40 Under 40 Map – Criminal Defense
  • Top 100
    • Civil Plaintiff Officers / Executive Committee
    • Criminal Defense Officers / Executive Committee
    • Benefits
    • About
    • Top 100 Presidents Message
    • Diplomat
    • Membership Renewal
    • Member Profile Updates
    • Top 100 Badge
  • Top 40
    • Civil Plaintiff Officers / Executive Committee
    • Criminal Defense Officers / Executive Committee
    • Top 40 Under 40 Trial Academy Bootcamp
    • Benefits
    • About
    • Top 40 Presidents Message
    • Membership Renewal
    • Member Profile Updates
    • Top 40 Badge
  • Specialty Assoc
    • About
    • Shop
    • Officers
    • Membership Renewal
    • Member Profile Updates
  • Nominate
    • Top 100
    • Top 40
    • Specialty Association
    • Trial Lawyer Hall of Fame
    • Trial Lawyer of the Year
    • Trial Team of the Year
    • America’s Most Influential Trial Lawyer
    • America’s Most Influential Law Firm
    • Lifetime Achievement Award
  • Shop
  • Magazine
    • A-List
  • Education and Networking Agenda
    • Trial Lawyers Summit
    • Top 40 Under 40 Trial Academy Boot Camp
    • Mass Torts Made Perfect
    • The Lanier Trial Academy Master Class 6.0
    • The Business Of Law
    • Webinars
  • Hall of Fame
    • Trial Lawyer Hall of Fame

No Time for Employers to be “Dazed and Confused” About Marijuana Laws

Posted on January 19, 2016 by Eleanor Smith

Marijuana in the Workplace

Despite the recent buzz regarding developing marijuana laws in a significant number of states across the country, employers may still have the ability to “just say no” when it comes to the recreational use of marijuana. Off-duty conduct statutes, zero tolerance statutes, and even unions can make it difficult for employers to understand their rights. The interplay between federal law versus state law can still be confusing enough to cloud employers’ understanding of how to implement drug-related policies, but employers need only clearly communicate their policies to their employees.

Marijuana is still illegal under federal law, regardless of state action. In light of these new state recreational marijuana laws, employers must simply clearly communicate to employees that their workplace substance abuse and testing policies have not changed and still apply to marijuana use. In fact, recreational marijuana laws either specifically protect employers or establish no restrictions on employer action.

The Legal Haze

Recently enacted statutes and newly litigated cases help highlight the complexity that still inherently remains in marijuana laws.

Marijuana Legislation Map

Lexology’s marijuana legislation map demonstrates the widespread sweep of development in marijuana laws.

Minnesota’s Medical Cannabis Act of 2014 states,

“An employer may not discriminate against a person in hiring, termination or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s status as a qualified patient or a qualified patient’s positive drug test for cannabis components or metabolites unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.”

This protection has an exception if the failure to discriminate “would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations.”

The consequences of the law for Minnesota employers seeking to maintain a drug-free workplace can be onerous, but solace for employers can be found in the narrow restrictions on the population that can use medical cannabis, and the means by which the drug may be administered. The Minnesota act limits the type of medical marijuana that may be used by patients to that in oil or other liquid forms.

OK to fire pot-smokers Colorado

Last summer the Colorado Supreme Court affirmed the right of an employer to terminate an employee who tested positive for marijuana in violation of the employer’s anti-drug policy. The impact of the decision is largely limited to Colorado because the case involved only the interpretation of Colorado law. Nonetheless, the Colorado Supreme Court’s decision highlights the complex legal landscape that employers face as they navigate both state and federal laws governing marijuana usage.

The Colorado employee used medical marijuana off-duty to ameliorate a health condition, a practice permitted under Colorado’s state constitution.  At the time of drug testing, the employee was not under the influence of marijuana, nor was there any evidence that he had used marijuana at work or had been under the influence at work during other times.

The employer, however, had a zero-tolerance drug policy in place. When the employee tested positive, he was fired. The employee filed suit, claiming that his termination violated Colorado’s off-duty conduct statute, which provides that employers may not terminate employees for engaging in any “lawful activity off the premises of the employer during non-working hours.” The Supreme Court concluded that marijuana cannot be a lawful activity because it is not yet lawful under both state and federal law.

In the Weeds

Two employment marijuana suits are currently pending in the U.S. District Court for the District of New Jersey and a third has been filed in Superior Court in Essex County. All three plaintiffs say they were open with their bosses about receiving medical marijuana treatment, but were nonetheless fired after testing positive for marijuana. The suits accuse employers of disability discrimination under the state Law Against Discrimination.

New Jersey lawmakers did not grant workers any specific protections when they approved the Compassionate Use Medical Marijuana Act in 2010. Five years later, the act still clearly states, in part, that “nothing shall be construed to require an employer to accommodate the medical use of marijuana in any workplace.”

John DiNome, a labor and employment lawyer, said, “An employer, at this point, needs to give some thought—do you want a zero-tolerance policy, or do you want to make accommodations for someone using medical marijuana? Some employers are thinking, ‘If we want to attract a certain workforce, we need to change our policies.'”

Posted in Blog, Employment

Comments are closed.

News Categories

Read about other Top Jury Verdicts

The New Mexico Supreme Court Upholds $165 Million Damage Awards in a Deadly FedEx Crash

The New Mexico Supreme Court Upholds $165 Million Damage Awards in a Deadly FedEx Crash

The New Mexico Supreme Court on Thursday upheld $165 million of jury awards against FedEx in a wrongful-death lawsuit stemmin[Read More...]
Noom Reaches a $56 Million Class Action Settlement Over Its Autorenewal and Cancellation Policy

Noom Reaches a $56 Million Class Action Settlement Over Its Autorenewal and Cancellation Policy

Weight-loss program Noom has agreed to a $56 million settlement to resolve class action claims regarding its autorenewal and [Read More...]
Virginians Will Receive $489 Million in a Payday Loan Settlement

Virginians Will Receive $489 Million in a Payday Loan Settlement

Online payday loan companies that charged as much as 919% interest will spend $489 million to reimburse some 555,000 borrower[Read More...]
The State of Minnesota Will Pay $1.5 Million to a Man Who Alleged Excessive Force During an Arrest

The State of Minnesota Will Pay $1.5 Million to a Man Who Alleged Excessive Force During an Arrest

Minneapolis has agreed to pay $1.5 million to a man who said police used excessive force when he was arrested during the prot[Read More...]
A $230 Million Settlement Is Reached Over a 2015 Southern California Oil Spill

A $230 Million Settlement Is Reached Over a 2015 Southern California Oil Spill

The owner of an oil pipeline that spewed thousands of barrels of crude oil onto Southern California beaches in 2015 has agree[Read More...]

#LegalNews

@@TheNTLtop100

Contact Us | Terms of Use | Privacy Policy

Attorney information and content provided on this website is provided for the benefit of members of The National Trial Lawyers and as a public service by Legal Associations Management, Inc. The website and all data are the property of Legal Associations Management, Inc. Data, including without limitation attorney information and content, on the site may not be mined, sold, or used commercially for any purpose without the explicit written consent of Legal Associations Management, Inc. This site may not be accessed by any automated program for extracting data for any use. By accessing and using the site you agree that you will not develop, support or use software, devices, scripts, robots, or any other means or processes (including crawlers, browser plug-ins and add-ons, or any other technology) to scrape data or otherwise copy profiles and other data. Unauthorized use or attempted unauthorized use of this system may subject you to both civil and criminal penalties.