High Times: Can Employers Say “No” to Legal

Marijuana and What If They Don’t?

2017 NAPABA CONVENTION

Presented By

Arooj Sheikh

Emily Patajo (Moderator)

Jeffrey Sun

Amanda Fu

Assistant General Counsel at Oath Inc.

Legal Counsel at Abercrombie & Fitch Co.

Corporate Counsel at Varian Medical Systems

Littler Mendelson, P.C.

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• State Legalization of Marijuana

– Recreational Use

– Medical Use and Limited Medical Use

• Federal Laws Regarding Marijuana Use

• Employer Issues with Medical Marijuana

– Americans with Disabilities Act and corresponding state laws

– Family and Medical Leave Act

– Lawful off-duty conduct statutes

– Duty to provide a safe workplace

Agenda

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• State Legalization of Marijuana

–Recreational Use

–Medical Use and Limited Medical Use

High Times: Can Employers Say “No” to Legal Marijuana

and What If They Don’t?

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• Legalization of marijuana has swept across the United States

• The majority of states and the District of Columbia have

legalized marijuana and/or cannabidiol

Legalization of Marijuana

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Pros of Marijuana Legalization

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• Medical

– Pain control

– Multiple sclerosis

– Nausea

– Epilepsy

– Traumatic brain injury/concussions

– Alzheimer’s disease

– Bipolar disorder

– Arthritis

– AIDS/HIV

– Glaucoma

– Certain irritable bowel syndromes

• Economic

– New jobs for packaging

– Horticulture

– Commercial leasing

– Warehousing

– Cuisine

– Marketing

– New jobs for government regulators, transporters, etc.

Cons of Marijuana Legalization

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• Medical

– Too much THC can lead to psychosis

– Anxiety

– Depression

– Cyclic vomiting syndrome

– Medical uncertainty

– Altered brain development in children

– Dependence

– Impaired coordination

– Altered judgment

– Short term memory loss

• Economic

– “Cash only” business

– Traffic accidents and fatalities

– “Doping” down America

• Alaska

• California

• Colorado

• District of Columbia

• Maine

• Massachusetts

• Nevada

• Oregon

• Washington

States Permitting Recreational Marijuana

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• None of the recreational marijuana statutes in these states contain employment

protections for recreational marijuana users

• None of these states have limited an employer’s right to enforce a zero-tolerance

marijuana policy

States Permitting Recreational Marijuana

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States Permitting Use of Medical Marijuana

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• Alaska

• Arizona

• Arkansas

• California

• Colorado

• Connecticut

• Delaware

• District of Columbia

• Hawaii

• Illinois

• Maine

• Maryland

• Massachusetts

• Michigan

• Minnesota

• Montana

• Nevada

• New Hampshire

• New Jersey

• New Mexico

• New York

• North Dakota

• Ohio

• Oregon

• Pennsylvania

• Rhode Island

• Vermont

• Washington

• A low-THC form of cannabis is currently legal in:

• Alabama

• Florida

• Georgia

• Iowa

• Kentucky

• Louisiana

• Mississippi

• Missouri

States With Limited Marijuana Use Laws

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• North Carolina

• South Carolina

• Tennessee

• Texas

• Utah

• Virginia

• Wisconsin

• First state to legalize marijuana for medicinal purposes

• 1996 California Compassionate Use Act – legalized marijuana use for patients

and their designated primary caregivers to possess and cultivate marijuana for

their personal medical use with recommendation and/or approval of California

licensed physician

• An applicant or employee who uses medical marijuana is not protected as a

qualified individual under the Fair Employment and Housing Act

California

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• Recently legalized marijuana for recreational use

– In November 2016, Proposition 64 passed legalizing adult possession and

cultivation of recreational marijuana for California residents and visitors older

than 21 years

California

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• Limited protections for employees who use recreational marijuana in the

workplace.

• Employers can maintain a drug-free workplace

• Employers are not required to permit the use, consumption, possession, transfer,

display, transportation, sale, or growth of marijuana in the workplace

• Employers can have policies prohibiting marijuana use by employees and

prospective employees

California

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• First state to legalize marijuana for recreational use

• An employer is not required to permit or accommodate the use, consumption,

possession, transfer, display, transportation, sale, or growing of marijuana in the

workplace

• An employer can have policies restricting the use of marijuana by employees

• Moreover, an employer who occupies, owns or controls a property can prohibit or

otherwise regulate the possession, consumption, use, display, transfer,

distribution, sale, transportation, or growing of marijuana on or in that property

Colorado

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Federal Laws

Regarding

Marijuana Use

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• Controlled Substances Act

– Use, possession, and sale of marijuana – medical and recreational – is illegal

and considered a federal crime

– Views marijuana as a substance for which there are no currently accepted

medical uses

Federal Law

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• Under the Obama Administration, the United States Attorney General relaxed

federal enforcement of criminal marijuana laws.

• President Donald Trump has sent mixed messages on his views regarding

marijuana.

Federal Law

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• Americans with Disabilities Act

and corresponding state laws

• Family and Medical Leave Act

• Lawful off-duty conduct

statutes

• Duty to provide a safe

workplace

Employer Legal Issues with Medical Marijuana

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Americans with

Disabilities Act

(“ADA”)

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• Individuals “currently engaging in the illegal use of drugs” – including

Schedule I marijuana – are not protected under the ADA

– Exception: “Illegal use of drugs” does not include the use of a

Schedule I drug taken under supervision by a licensed health care

professional

• Employers may adopt reasonable policies/procedures to ensure that

employees are not engaging in the “illegal use of drugs”

Americans with Disabilities Act (“ADA”)

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•Former/recovering addicts must be accommodated under the ADA;

these individuals must be engaged in the interactive process

•Drug addicts may suffer from a disability under the ADA, provided that

they are not currently using drugs/marijuana

Americans with Disabilities Act (“ADA”)

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• Must also accommodate employees with a

disability who is a medical marijuana user

– Engage in interactive process

– Find out if there are medicines or therapies

that might also alleviate symptoms

– If there are, you may be able

to require the employee to pursue those

alternatives

Americans with Disabilities Act (“ADA”)

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•There are risks with accommodating/not accommodating

employees

•Accommodating: impaired individuals may compromise safety;

liability concerns to third parties; risk of dealing with law

enforcement activity

•Not Accommodating: discrimination lawsuits; bad press

Americans with Disabilities Act (“ADA”)

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State Anti-

Discrimination and

Accommodation Laws

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• Arizona

• Connecticut

• Delaware

• Illinois

• Maine

• Minnesota

• Nevada

• New York

• Pennsylvania

• Rhode Island

State Accommodation Laws

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• Medical marijuana laws contain anti-discrimination or reasonable accommodation

provisions addressed to employers

• These laws do not require:

–Employer to permit a medical marijuana user to possess or use marijuana or

marijuana products on site.

–Accommodate a medical marijuana user by ignoring a positive test result.

State Accommodation Laws

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• For example, in New York, being a certified patient qualified as having a

“disability” under the state human rights law. Under this law, it is an unlawful

discriminatory practice for an employer to refuse to provide reasonable

accommodations to the known disabilities of an applicant or employee in

connection with a job or occupation sought or held.

• The medical marijuana law does not prohibit an employer from enforcing a policy

prohibiting employees from performing employment duties while impaired by a

controlled substance

• Law does not require a person or entity to do any act that would put it in violation

of federal law or cause it to lose a federal contract

New York

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• California

• Colorado

• Oregon

• Michigan

• Montana

• Washington

State Laws Not Requiring An Accommodation

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•Retail employee in Michigan was legally using marijuana to deal with pain caused

by sinus cancer and an inoperable brain tumor

•Employee claimed he never used medical marijuana while on duty

•He was terminated for testing positive for marijuana use

•A federal appellate court, examining Michigan’s medical marijuana law, upheld a

lower court’s decision that the law did not protect employees from disciplinary

action due to their medical marijuana use, so the employee could be fired for

failing a drug test in violation of the employer’s drug testing policy

Case Against Retailer in Michigan

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Hypotheticals

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• Employee says: “I’ve been on medical marijuana, I stopped using it,

but I’m addicted and I’ve entered rehab.” What now?

– ADA – protected as long as not currently engaging in illegal drug

use

– But illegal drug use in the weeks and months before the

employee’s request for accommodation will disqualify the

employee from ADA protection

Hypothetical

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• Mary Jane comes to work high. When confronted, she whips out a Registry Card. What now?

– Employer need not accept medical marijuana explanation

– Follow your policy

– ADA

• No Protection for current users of illegal drugs

• Possible direct threat if safety-sensitive job

Hypothetical

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• Mr. Blunt comes to work waving his

Registry Card. What now?

– Nothing illegal in having a card

– Viewing him as an illegal drug user?

• Could raise a perceived disability

issue

Hypothetical

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Lawful Off Duty

Statutes

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• Coats v. Dish Network, L.L.C., decided by the Colorado Supreme

Court on June 15, 2015

– Mr. Coats, a quadriplegic customer service rep, holds a license to use

medical marijuana in Colorado. He used off the employer’s premises,

and claims he was never under the influence of marijuana at work

– Mr. Coats tested positive for marijuana pursuant to a random drug

test and he was fired for violating his employer’s drug policy

Lawful Off-Duty Use Statutes

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• Issue: Whether Colorado’s Lawful Activities statute protected Mr.

Coats from being terminated for using medical marijuana off-duty

where such use is lawful under Colorado law?

• Held: Dish Network did not violate Colorado’s lawful activities statute

by terminating the employee because medical marijuana use is not

lawful activity under federal criminal law, and the Colorado lawful

activities statute does not make any distinction between lawful

activities under state or federal law

Lawful Off-Duty Use Statutes

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Family and

Medical Leave

Act (“FMLA”)

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• Treatment for substance abuse (including marijuana abuse) may be

considered a “serious health condition” under the FMLA, provided

that conditions for inpatient care and/or continuing treatment are met

• Treatment for substance abuse does not prevent the employer from

taking an adverse employment action against an employee

Family and Medical Leave Act (“FMLA”)

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Workplace Policies

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• Applies to federal contractors with $150,000+ contracts and federal grant money

of any amount

• Requires employer to publish a DFWP policy that prohibits, among other things,

use or possession in the workplace

• Requires employers to report drug-related crimes occurring in the workplace

• If employers do not comply, their contracts and/or grant money are at risk

• ADA states that an employer may require employees to behave in a manner that

meets federal Drug-Free Workplace Act requirements

– The unlawful manufacture, distribution, dispensation, possession, or use of a

controlled substance is prohibited in person’s workplace; and

– The employee must abide by the terms of that statement

Drug Free Workplace Policies

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• Institute policy that requires employees to

disclose use of medications that may impair

their ability to work if this request is job-related

and consistent with business necessity

• If an employee tests positive for marijuana,

confirm that employee is prescribed marijuana

Drug Testing Policy Recommendations

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Questions?

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Thank You!

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