Medical marijuana and the workplace

June 12, 2004

John Sahlberg, Idaho Employment Law Letter

 Idaho may be one of the least likely states to legalize marijuana use for
medicinal purposes, but two of its neighbors and at least seven other states
have already done so. An Idaho employer with operations in any of those nine
states or that has employees who live in those states but work in Idaho may be
concerned about how such use affects its obligation to provide a drug-free and
safe workplace.    Given a recent court decision in the Ninth U.S. Circuit Court of Appeals, the
circuit that covers Idaho (and seven of the nine states that have medical
marijuana laws), and a recent Oregon arbitration decision, some Idaho employers
may have reason to worry about the potential spillover into their business.

   State medicinal marijuana laws

   Oregon, Washington, California, Alaska, Arizona, Colorado, Hawaii, Maine, and
Nevada all allow their residents to grow and use marijuana for medicinal
purposes. The laws are very similar in their provisions: They permit the
cultivation and use of marijuana for 'medicinal' purposes and a process to
authorize (not prescribe) use of the drug.

   A more in-depth look at one law, the Oregon Marijuana Act of 1998 (OMA), is
instructive on how these statutes generally work. Basically, the OMA permits a
person with a 'valid medical marijuana registration card' to use marijuana to
treat 'debilitating medical conditions.' To obtain a card, a person must have a
'debilitating medical condition,' which is defined as such conditions as
Alzheimer's, wasting syndrome, cancer, glaucoma, HIV/AIDS, seizures, nausea,
severe pain, and/or muscle spasms. The person needs to submit 'valid, written
documentation' from a physician stating that he has been diagnosed with a
debilitating condition and that the medical use of marijuana may mitigate either
the symptoms or the effects. The Oregon Department of Human Services must act on
the application within 30 days and can deny it only if the applicant didn't
provide all the information or the department determines that the information
provided was falsified. It isn't clear that the department has denied many, if
any,

   In addition, the registered individual may be assisted in the marijuana use
by a 'designated primary caregiver,' an individual at least 18 years of age who
has significant responsibility for managing the well-being of a person with a
debilitating condition and who is designated on the application or registration.

   At last report, over 7,500 residents were registered to use marijuana for
medical purposes and another 4,600 caregivers were registered and allowed to
grow marijuana although their personal use of the drug isn't legal. The court
decisions discussed below have created a lot of interest in obtaining
authorization for using marijuana, and the current backlog of applications in
Oregon is estimated to be in the thousands.

   Federal laws

   There are a handful of federal laws that might come into play concerning
medical marijuana use. Under the Drug-Free Workplace Act of 1988 (41 USC Section
701 et seq.), federal contractors are required to operate a drug-free workplace.
That law, however, is more about reporting workplace violations than preventing
them.

   The federal law with teeth is the Controlled Substances Act (CSA)(21 U.S.C
Section 801 et seq.). The CSA makes it a crime to manufacture, distribute,
and/or possess marijuana and creates no exception for medical use. In fact, it
notes that marijuana is a schedule I controlled substance, which means that it
has no currently accepted use in medical treatment in the United States. The
federal government has taken the position that the CSA preempts state laws that
allow marijuana use.

   In Raich v. Ashcroft, the Ninth Circuit disagreed with the federal government
and held essentially that the CSA can regulate only interstate or commercial use
of marijuana. The court ruled in December 2003 that the Interstate Commerce
Clause of the U.S. Constitution didn't give Congress the authority to prohibit
the 'noncommercial' growing and intrastate use of marijuana for medicinal
purposes as recommended by a patient's physician in accordance with California
state law. That decision continues the recent trend by federal courts of
limiting Congress' ability to reach too far into state issues.

   Using the U.S. Supreme Court's analysis in United States v. Morrison, which
prohibited Congress from regulating domestic violence under the Violence Against
Women Act, the Ninth Circuit previously held in United States v. McCoy that
Congress can't extend the federal statutory prohibition against child
pornography to cover items not mailed or crossing states lines or intended to be
used for commercial or interstate purposes. The net result is that in seven of
the nine states identified above, the medical marijuana laws are now
presumptively valid.

   Because state laws require an underlying medical condition, does that mean
that the Americans with Disabilities Act (ADA) now will require employers to
accommodate marijuana? Fortunately, the Equal Employment Opportunity Commission
has taken the position that the use of marijuana, just like the use of any other
illegal drug, disqualifies an individual from ADA protection. In short, the ADA
doesn't provide protection for the illegal use of drugs, and which drugs are
illegal is based on the federal CSA. But the result may not be the same under
state disability laws.

   Oregon state law

   While what position the various state human rights commissions might take on
marijuana in the workplace isn't yet clear, it's becoming clear in the state of
Oregon. The Oregon Bureau of Labor and Industries (BOLI) is taking the position
that 'a job applicant or employee with a disability should not be disqualified
from protection simply by virtue of medical use of marijuana, when it's properly
authorized.' The employer isn't required to accommodate an employee's use of
marijuana in the workplace -- so using, selling, or possessing marijuana in the
workplace can still be a basis for terminating an employee. But off-duty use and
possession may no longer be a valid concern for employers. BOLI's position is
that if the employee's underlying condition i' a qualifying disability and he's
authorized to use marijuana, then an employer might be required to make a
reasonable accommodation for that use.

   What might an employer's required accommodation look like? Well, BOLI has
cited an instance in which a person with cancer undergoes chemotherapy on a
Monday. According to BOLI, the employer might be required to allow the
individual to have Mondays and Tuesdays off to accommodate 'the authorized use
of the drug.' And what happens if the employee is injured on Wednesday and tests
positive on a drug test? BOLI states that the employer shouldn't pursue
discipline when the evidence 'suggests' that the employee is only making
authorized use of the drug, isn't under the influence of the drug at work, and
isn't posing an imminent safety risk while at work.

   That's an interesting position for BOLI to take since there are no acceptable
standards for determining, as there is for blood alcohol for DUIs, when an
individual is under the influence of marijuana. Behavior alone is the only
apparent basis for determining whether such a person is 'under the influence.'
So the question may boil down to whether, based on observation, an employer can
make a case that a person is either 'under the influence' or an 'imminent safety
risk.' Neither of those will be easy for an employer to prove.

   A recent Oregon arbitration decision also found that a positive drug test
wasn't enough for an employer to base discipline on. In Freightliner and
Teamsters Local No. 305, an Oregon arbitrator found that Freightliner couldn't
fire an employee who used marijuana as medicine to relieve chronic pain. In the
case, the employee smoked one or two joints each day after work. While driving a
24,000-pound forklift in the warehouse area, he struck overhead pipes when
attempting to remove a pallet of trash from a high perch. The ruptured pipes
disrupted operations, but no one was injured. The employee wasn't disciplined
for the accident but did test positive on a drug test taken several days later.
Only when he was asked to take the drug test did the employee inform the company
of his medical marijuana use despite the fact that he knew of the company's
policy requiring notification of prescription drug use. The company fired the
employee for being 'impaired' at work based on the drug-test results.

   The arbitrator found that requiring a drug test two days after the accident
was a reasonable exercise of management discretion because the accident had been
avoidable. The arbitrator focused on whether the employee was 'under the
influence' and found that the drug test showed only that he had engaged in drug
use, which he admitted occurred off duty. The arbitrator determined that the law
doesn't permit an employer to discipline an employee who uses marijuana because
of a valid 'prescription,' did so on his own time, and reported to work in an
'unimpaired' state. Consequently, the company didn't have just cause to
discipline the employee solely for the drug-test results. The company would have
had just cause had the employee been impaired and tested positive, the
arbitrator noted.

   The arbitrator also poked a hole in the company's requirement that employees
who use prescription drugs notify it so that their fitness for work can be
determined. Because the requirement failed to state when notification should
occur, the fact that the employee was slow in reporting his medical use of
marijuana wasn't found to be untimely or a basis for discipline.

   Conclusion

   So what should an Idaho employer do? Unfortunately, while the issues
surrounding medical use of marijuana are working their way through the courts of
the various states, there are currently more questions than answers. Each
decision will likely provide you with further guidance, but there are a few
lessons that can be learned from the decisions that have been reached.

   For example, based on the Freightliner case, you may want to check whether
your drug-testing policy requires reporting the use of prescription drugs. If
so, should it be amended to include medical marijuana (marijuana use is
authorized by a doctor but not prescribed) and require notification to you in
advance of the individual doing work?

   What's clear is that simply because an employee tests positive for marijuana
on a drug test doesn't mean the employer can automatically take action, at least
in the states that authorize medical use. If the employee produces an
authorization card, for example, the use is probably excused. But the fact that
an employee has a card doesn't always mean he has a disability. Not everyone
issued a card necessarily has a condition that qualifies as a protected
disability, so before deciding to 'accommodate' medical marijuana use, you may
want to require medical certification of the disability from the doctor.

   On-premises use, possession, or transfer can still be a basis for discipline,
but not everyone arrested in Oregon for possession of marijuana, for example,
can be disciplined. If the individual is an authorized 'caregiver' who grows
marijuana for medical use, an off-site arrest may not be valid. Finally, what
about an Idaho employer that has an Oregon resident working in Idaho who has
authorization to use medical marijuana? While the answer to the last question
may seem pretty straightforward, it's one of the many questions that haven't
been answered. Until it is, a prudent employer is advised to contact legal
counsel before taking action whenever medical marijuana may be an issue.

   You can catch up on the latest court cases involving drug use in the
subscribers' area of HRhero.com, the website for Idaho Employment Law Letter.
Just log in and use the HR Answer Engine to search for articles from our 51
Employment Law Letters. Need help? Call customer service at (800) 274-6774.

   The author is Boise attorney John Sahlberg -- director of labor and
employment practices for Boise and a member of this newsletter's Editorial
Review Board. You can reach him at johnsahlberg@bc.com. Copyright 2004 M. Lee
Smith Publishers LLC


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