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Legalization of Marijuana Creates Uncertainty as to the Rights of Employers in Responding to Marijuana Use Outside the Workplace.

Legalization of Marijuana Creates Uncertainty as to the Rights of Employers in Responding to Marijuana Use Outside the Workplace

November 29, 2016

On November 8, 2016, both Maine and Massachusetts voters legalized recreational marijuana use under state law.  In Maine, the marijuana question passed by 4,073 votes, leading opponents to request a recount.  A recount will begin during the first week of December and will probably take about one month to complete.  Assuming the recount will not change the outcome in Maine, the law will take effect sometime in January 2017.  The Maine Marijuana Legalization Act does not require an employer to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace.  The Act also does not affect an employer’s ability to enact and enforce workplace policies restricting employees’ use of marijuana.  Although the Act does not affect an employer’s ability to discipline employees who are under the influence of marijuana in the workplace, as discussed in more detail below, the drafters of this new Maine law included language that prohibits an employer from discriminating against an employee for using marijuana outside of work.  Specifically, the new Maine law prohibits an employer from refusing to employ or otherwise penalizing a person 21 years of age or older solely for that person’s consuming marijuana outside of an employer’s property.

The recreational marijuana law passed by Massachusetts voters takes effect on December 15.  Similar to the Maine law, the Massachusetts Regulation and Taxation of Marijuana Act does not require an employer to permit or accommodate marijuana use in the workplace and does not affect an employer’s authority to enact and enforce workplace policies restricting the consumption of marijuana by employees.  This means that, just as with alcohol consumption, employers in Massachusetts may set rules about employees’ use of marijuana at work.  Unlike the Maine law, the drafters of the new Massachusetts law did not explicitly attempt to restrict an employer from taking disciplinary action against an employee for recreational marijuana use outside of work.  However, the existing Massachusetts medical marijuana law states that a qualifying patient or personal caregiver shall not be penalized under Massachusetts law in any manner or denied any right or privilege for use of medical marijuana.  A case is currently pending in Massachusetts state court in which a plaintiff who suffers from Crohn’s Disease and uses medical marijuana as part of her treatment claims that the medical marijuana law should be interpreted to prohibit an employer from firing such a user who fails an employer mandated drug test.

In addition to Maine and Massachusetts, Nevada and California voters also voted to legalize some form of recreational use of marijuana.  These four states join Colorado, Oregon and Washington.  Twenty-six states and the District of Columbia currently have state laws that permit the use of medical marijuana.  The types of protections that each of these medical marijuana laws purportedly provide to employees vary from state to state.

How do Employers Handle Marijuana Legalization?

First and foremost, employers should not panic.  Despite state legalization of either medical or both medical and recreational marijuana use, all marijuana use remains illegal under the federal Controlled Substances Act (“CSA”), 21 U.S.C. § 844(a).  Although courts in the Northeast have not yet addressed whether federal law will preempt and therefore void the employee protections provided under the various state laws, a federal court in New Mexico did render a decision on this issue in January of this year.  In Garcia v. Tractor Supply Co., 154 F.Supp.3d 1225 (D. N.M. Jan. 7, 2016), the plaintiff-employee (Rojerio Garcia) suffered from HIV/AIDS, used medical marijuana, and failed his employer’s drug test.  He brought action in state court against the defendant-employer (Tractor Supply Company) alleging that his employer’s termination of his employment was based on his serious medical condition and his use of medical marijuana, and therefor that the employer discriminated against him on the basis of disability under the New Mexico Human Rights Act.  In considering the relevant case law, the court held that, “to affirmatively require Tractor Supply to accommodate Mr. Garcia’s illegal drug use would mandate Tractor Supply to permit the very conduct the CSA proscribes.”  Therefore, the court determined that the federal CSA preempted the New Mexico anti-discrimination law, ruling that an employer did not have to follow state laws that protect employees who use marijuana.  This court decision is consistent with a 2010 decision issued by the Oregon Supreme Court.  Although decided on slightly different grounds, in 2015 Colorado also upheld the right of an employer to terminate an employee who tested positive for marijuana because marijuana remained unlawful under federal law.  The court noted that an activity such as medical marijuana use that is unlawful under federal law is not a “lawful” activity under the state’s “lawful activities statute”.

Notwithstanding the legalization of marijuana use under state laws, we expect that most courts will follow the decision reached by the New Mexico federal court in January and hold that employers may still discipline employees who test positive for marijuana even if the marijuana use took place outside of work.  However, this issue will remain an open question until one or two cases dealing with this issue wind their way through the court system.

We recommend that employers consult with us prior to taking any disciplinary action regarding an employee’s use of marijuana.  It is also important for employers to review their handbook, policies, and procedures – especially drug testing protocols.  Several states do impose restrictions on the right of an employer to require employees to submit to drug tests.  As part of any revised policies, employers should notify employees that despite the state legalization of marijuana, the substance remains illegal under federal law and an employee who tests positive will still be subject to discipline up to and including termination of employment.

For additional guidance, please contact Peter Bennett (pbennett@thebennettlawfirm.com) or Rick Finberg (rfinberg@thebennettlawfirm.com) of The Bennett Law Firm.

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