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The proverbial sky could fall soon for drug testing and drug policies
Since 1970, marijuana has been listed as a Schedule I controlled substance under the Controlled Substances Act, making the possession and usage of marijuana illegal under federal law. Employers have traditionally relied on this classification of marijuana as an illegal drug when setting policies designed to keep workplaces safe and free from drug use. However, the legalization of medical marijuana in some states (20 and counting since 1996, plus the District of Columbia) has placed employers in these states, as well as state legislatures and courts, in a precarious position when trying to fashion and enforce workplace policies in light of a now-muddied legal landscape.
“At this juncture, I would suggest that the proverbial sky isn't falling when it comes to drug testing and policies in the workplace, but it could fall soon. Employer HR reps and Safety Directors must be vigilant to ensure that they keep pace with the ever-evolving case law and legislative developments,” cautioned Albert Randall Jr., a Maryland attorney with Franklin & Prokopik P.C. experienced in employer defense law, during a live chat on LexTalk following the LexisNexis webinar, Up in Smoke? The Drug Law Evolution & The Workplace: Managing New Risks.
Federal and State Law and Employer Drug Policies
As would be expected, the legalization of marijuana use, even if just medical marijuana use, has a major impact on employers’ drug-free workplace policies. In certain industries, such policies are mandated by federal law. For example, the federal Drug-Free Workplace Act of 1988 requires contractors receiving federal grants to maintain a drug free workplace in order to receive federal funds, and given the status of marijuana as an illegal drug under federal law, these contractors would need to continue treating marijuana as such. In addition, Department of Transportation regulations governing certain transportation workers prohibit using legal medical marijuana use under state law as a basis for negating an otherwise-positive drug test.
Outside of those occupations governed specifically by federal law, however, the protections both for employers and employees under state law will vary by state. States that have legalized medical marijuana generally still allow employers to prohibit its use in the workplace, as well as to prohibit employees from working while under the influence of the drug. Conversely, some states, including Connecticut, Illinois, Michigan, and several others, go so far as to prohibit employers from disciplining or discriminating against an employee for being a registered marijuana cardholder.
While drug tests remain permissible under the appropriate circumstances, some states, such as Arizona and Delaware, require evidence of impairment that goes beyond merely a positive test for THC in order to discipline or terminate the employee, at least when no federal funding or licensing concerns are present. However, proving impairment can be difficult. Charles Oxender, a senior attorney at Miller Canfield P.L.C. specializing in labor law, related during the course of Up in Smoke?, “[I] had cases where it looks like somebody's high or stoned, bloodshot eyes, in that case, even taken them for a drug test coming up positive for marijuana, the arbitrator said we could not determine when the person took drugs. . . .[I]t presents a difficult burden on the employers . . . to try to pinpoint when the person [took the drugs]. We do regular training for supervisors to pinpoint when somebody's acting [impaired], their voice is not right, they show signs being under the influence, but it is difficult, to answer that question.”
As discussed in the LexisNexis webinar, court responses to wrongful termination claims so far have generally been to support employer decisions to terminate employees approved for legal medical marijuana use who have tested positive for marijuana, generally relying on the fact that federal law continues to make marijuana possession and use illegal. [One such case, Coats v. Dish Network, L.L.C., 303 P.3d 147 (Colo. App. 2013), was discussed in more detail in “Waiting to Exhale: Employee Firing for Off-Duty Medical Marijuana Use.” In that case, the Colorado court of appeals held that because marijuana use was still illegal under federal law, an employer had the right to terminate the employment of a registered medical marijuana user who tested positive despite a state statute that prohibited employers from firing an employee for off-duty “lawful” conduct. That closely-watched case is currently pending before the Colorado Supreme Court.] However, reliance on these court decisions might be short lived, as the very-real prospect that marijuana could be reclassified as a Schedule II controlled substance under the Controlled Substances Act would eliminate the basis for treating marijuana as an illegal drug under federal law.
When faced with an employee who tests positive for marijuana due to the legal use of medical marijuana, the greater the safety risks presented by a particular job, the more likely that an employer should be able to err on the side of caution. As Randall predicted, “[E]xpect that the courts will be more lenient of employee discipline, including termination, where an employee is working in a safety sensitive positions—whether it's a CDL driver, construction worker, assembly line worker or the like. I suspect that clerical workers and others that don't pose safety risks are going to be tougher to discipline and terminate . . ..”
Workers’ Compensation Questions
The legalization of medical marijuana raises several issues specific to workers’ compensation. One large issue is whether an injury should be compensable if it is sustained while the employee had legal medical marijuana in his or her system. Although state workers’ compensation laws generally deny coverage for injuries caused by drug intoxication, some states, such as New Mexico and Alaska, have statutes specifically providing an exception when the drugs are taken under the direction or administration of a medical doctor.
In addition, an issue of causation arises if coverage is denied only when the employee was actually impaired at the time. Mark Walls, Vice President Communications & Strategic Analysis for Safety National and moderator of Up in Smoke?, stated “The compensability issue will usually come down to a judge deciding whether or not the employee was impaired at the time of the accident and whether that impairment was the proximate cause of the injury.” However, as Walls also noted, current drug testing protocols cannot provide a clear measure of impairment by marijuana use in the way that tests for alcohol intoxication can. While drug tests can measure the presence of THC in the system, these tests can register THC that is up to a month old, even though any impairing effect would have long passed.
Another key workers’ compensation issue is whether a workers’ compensation insurer will be required to cover the cost of medical marijuana. While few states have addressed this, most of the ones that have indicate that insurers are not required to cover this cost. However, in at least two states, Washington (discretion of insurance carriers) and New Mexico (covered if patient has registry identification card, supervision and monitoring, and caregiver and practitioner licensing), the costs of medical marijuana can be covered.
The lesson to be learned from Up in Smoke? is that, in the short-term at least, most employers should be safe when applying their existing drug and alcohol policies without making special accommodations for medical marijuana users. Employers may continue with random, reasonable suspicion, or post-accident drug testing for those employers who have established programs, and act on those tests as appropriate. Employers who are required to meet federal workplace drug standards should, of course, continue complying with those guidelines.
However, the legal landscape in this area could change quickly and employers should continue to monitor for changes, especially at the state level, and make changes to existing workplace policies as needed. More states are likely to legalize medical marijuana use in the future, and in those states in which legalization has already occurred, state legislatures continue to address issues involving how this legalization impacts the employment relationship, not only with respect to employee discipline and job security, but with respect to benefit programs such as workers’ compensation as well.
As the legalization trend continues, the courts could also become more accepting of public policy arguments supporting protections for legal medical marijuana users, as could occur, for example, in the Coats decision pending in Colorado. State legalization of recreational marijuana use, as recently occurred in Colorado and Washington, could provide even more support for a broader acceptance of such policy arguments.
As noted above, future uncertainty is also created by the prospect that marijuana could be reclassified as a Schedule II controlled substance under the federal statute, eliminating the basis under federal law for treating marijuana as an illegal drug. Walls advised, “[N]ot if, but when the Federal government changes marijuana's classification from Schedule I to Schedule II . . ., it undermines any zero-tolerance policies that may be out there and employers will have to rewrite their policies to focus on impairment.” As determining impairment caused by marijuana use becomes more important, the chemical testing procedures used to calculate and quantify, if possible, such impairment will need to improve, and employers should ensure that the latest and most accurate testing protocols are implemented.
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