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

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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.

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.'"

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