Examining Workplace Policies in the Era of Legalized Marijuana Use

Legalization of marijuana continues to be a topic of great interest and debate throughout the country. For example, Acreage Holdings, a U.S.-based cannabis firm, made a splash in the news when their ad spotlighting the use of medical marijuana for pain relief was denied a commercial slot during this year’s Super Bowl.

The legalization of marijuana, whether it be for recreational or medical use, is an issue our country continues to struggle with as lawmakers weigh the costs and benefits of legalizing the drug. Despite the fact that marijuana remains a Schedule I controlled substance under federal law — the Controlled Substance Act — to date recreational use of marijuana is legal in 10 states and the District of Columbia, and medical marijuana use is legal in 33 states and the District of Columbia.

There appears to be a growing trend of legalizing marijuana use in one form or another. In fact, on December 6, 2018, Forbes reported in its article titled “Marijuana’s Ten Biggest Victories of 2018,” just in the previous year Vermont lawmakers approved a marijuana legalization bill allowing growth and possession of small amounts of cannabis; voters in Missouri, Oklahoma, and Utah approved ballot measures for medical marijuana use; and Michigan voters approved a ballot measure for legal recreational marijuana use.

With this growing trend toward legalizing marijuana, many employers may be left wondering how this will impact their businesses. Ensuring workplace safety should be a primary concern for any employer, particularly in the construction industry where employees may be operating heavy equipment or driving company vehicles. Right now, many companies may be relying on drug-free workplace policies to address those safety concerns. While these policies may be able to handle issues of recreational marijuana use, just as an employer can terminate or otherwise take disciplinary action against an employee who shows up to work intoxicated due to alcohol consumption, when medically prescribed marijuana is involved, this issue gets a little more complicated.

There is nothing inherently wrong with having a drug-free workplace policy. However, some recent cases have indicated that legalization of medical marijuana use could throw a wrench in the way in which an employer is allowed to enforce its drug-free workplace policy. Particularly, this can be an issue for employers in states where the medical marijuana laws include anti-discrimination or other employment provisions.

One example is Connecticut’s medical marijuana legislation, the Palliative Use of Marijuana Act (PUMA). PUMA prescribes qualifying conditions for a person to use marijuana for medicinal purposes. PUMA also contains an anti-discrimination provision that bars an employer from refusing to hire a person or from discharging, penalizing or threatening an employee based on an employee’s status as a qualifying medical marijuana patient. The statute further provides that it does not restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.

In 2017, in Noffsinger v. SSC Niantic Operating Co. LLC, the US District Court for the District of Connecticut denied in part an employer’s motion to dismiss plaintiff’s state discrimination claim when her offer of employment was rescinded after testing positive for cannabis. In Noffsinger, the plaintiff accepted a job offer from the employer which was contingent on drug testing. The plaintiff informed the employer she qualified as a medical marijuana user under PUMA for treatment of PTSD. When the plaintiff’s drug test came back positive for THC, the employer rescinded the offer.

The plaintiff filed a lawsuit against the employer and the employer filed a motion to dismiss her claim. The employer’s primary argument for dismissal of the claim was based on the assertion that PUMA was preempted by federal law. The court disagreed with this assertion and further found that PUMA creates a private right of action.

In 2018, the US District Court for the District of Connecticut heard motions for summary judgement on plaintiff’s discrimination claim and the Court held that the employer violated PUMA by rescinding the plaintiff’s job offer.

The Noffsinger case appears to illustrate the idea that while an employer is not prohibited from having a drug-free workplace policy, Connecticut law prohibits the policy from being used in a decision of hiring or to take action against an employee for their medically prescribed, off-duty marijuana use.

What remains a wildcard is how courts will handle discrimination claims in states where their medical marijuana legislation does not contain any explicit employment protections. A recent Massachusetts case (Barbuto v. Advantage Sales & Mktg., LLC et al.) could prove to be fairly groundbreaking in that regard. Massachusetts’ laws regulating the use of medical marijuana do not contain explicit anti-discrimination or employment provisions. However, in July 2017, the Supreme Judicial Court of Massachusetts reversed the dismissal of an employee’s discrimination claim against her employer when she was terminated from her employment because she tested positive for marijuana as a result of her lawful medical marijuana use.

This was a scenario that involved an employee prescribed marijuana for treatment of her Crohn’s disease, and the employee claimed she would use small quantities when at home a couple of times per week to maintain a healthy appetite. The employer was informed of her medical marijuana use and informed the employee that it should not be a problem. The employee ultimately underwent a drug screen that was positive for marijuana and was terminated due to the positive test results. The Barbuto court’s decision provides medical marijuana users the ability to assert claims against their employers for handicap discrimination under the Massachusetts Fair Employment Practices Act.

The Barbutocase, only having gotten past the motion to dismiss phase, still has a long way to go in terms of an ultimate ruling on the matter. Depending on whether a court finds in favor of plaintiff’s discrimination claim in this particular scenario has the potential to impact other state courts’ decisions in this regard.

Unfortunately, because we are only recently starting to see some of these issues rear their head in the state and federal court systems many of these issues are still in preliminary phases, as is the case with Barbuto. However, what that does mean is in the very near future we are likely to see more courts having to render decisions on these issues and hopefully provide more guidance to employees and employers.

Trying to navigate the waters while legalization of marijuana is still in a period of growth can seem like a daunting task for employers, but there are things that all employers can do to better protect themselves from these types of legal disputes. First, employers need to be familiar with their state and local laws regarding marijuana use; they should also stay up to date on pending legislation or issues on the ballot in their state regarding the same. Having clear and precise policies regarding the workplace can be beneficial, but employers must remember that the state laws vary. Therefore, employers with national companies could be opening themselves up to liability if they simply implement a blanket policy for all locations.

About the author: Felicia M. Haigh is an attorney with Raleigh, N.C.-based Anderson Jones PLLC. Questions about this article can be directed to her at fhaigh@andersonandjones.com.

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