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Attendees at a recent risk management conference in Denver had an excellent view of the world of legalized recreational marijuana, reported Mark Walls, vice president of communications and strategic analysis at workers’ compensation insurer Safety National. “Everywhere you went, you smelled it and you saw it.”
On the surface, it might seem a bit amusing. But the reality is that legalized marijuana is a frightening and confusing issue for employers around the country. More than 1,100 attendees tuned in to a LexisNexis® national Webcast in August seeking answers to questions about whether state or federal laws apply, whether their drug-free workplace and zero-tolerance policies will stand and whether termination for marijuana use is legal.
During the Webcast, three experts offered guidance to employers as they navigate the haze.
A Little Weed History
In 1970, Congress passed the Controlled Substances Act. Drugs were classified into schedules. Marijuana is a Schedule I drug, which means the government considers it to have no medical use, just like, say, methamphetamine. It remains so today, despite passage of laws in more than 20 states, so far, that legalized the use of marijuana for medical treatment. These state laws directly conflict with federal law. So far, two states—Colorado and Washington—have legalized recreational marijuana use. Not surprisingly, the states bordering the marijuana states are seeing an influx of marijuana use, and many cities are decriminalizing marijuana possession. Additionally, the medical uses are continually expanding, and for many doctors, very little is required to convince them to provide a prescription, the experts said.
“It’s a very short trip from medical use of marijuana to recreational use of marijuana,” Walls said. “To think this isn’t coming to a town near you is a mistake. Oh, it’s coming, and we need to get ready for it.”
Risks From Coworkers Who Partake
Albert “Bert” Randall Jr., a principal at Franklin & Prokopik in Baltimore, listed a host of workplace concerns when someone uses at work or even on their own time. If someone shows up impaired, it is a safety risk for that worker, the coworkers, vendors and customers. If the job involves driving, the public at large is in danger, Randall said. Drug use can lead to increased absences, tardiness, morale issues, decreased personal care, family discord, potential for depression and mood disorders, all of which impact the employee, colleagues and the company, Randall said.
He said recent national statistics showed 8.5 percent of workers report drug and alcohol use, and 2.9 percent say they have gone to work under the influence. Given the tendency to underreport drug and alcohol use, the actual numbers are likely greater, he said.
Since marijuana use is still prohibited under federal law, companies in medical marijuana states that do business with the federal government are concerned that if they abide by state laws, they will not meet their responsibilities under the Drug-Free Workplace Act of 1988, Randall said.
Arizona law provides that an employee must have an established impairment—not just received or been prescribed marijuana — to take action under a drug-free workplace policy, Randall said. The Washington legislation protects employers that establish a drug-free workplace; they do not need to make an accommodation for marijuana. Delaware law specifically prohibits an employer from discriminating in hiring, termination or any other action based on an employee’s possession of a medical marijuana card. However, if marijuana is used, possessed or the employee is impaired on the premises, the employer is generally safe, he said.
Similarly, the Michigan medical marijuana law prevents any licensing board from discriminating on the basis of possession of a card, said Charles Oxender of Miller Canfield in Detroit.
If the federal government dropped marijuana to a Schedule II drug, it would establish a medical use for it and eliminate conflict, he said.
As it is, the federal government has its head in the sand, Randall said. The Department of Justice issued new enforcement rules regarding minors and large criminal enterprises, indicating it is not going to worry about common users. “But in the employment realm, the fed is doing nothing.”
“I Haven’t Smoked Since Last Week”
One of the most difficult aspects of the marijuana issue is determining impairment. Medical science just has not caught up with where the law is, Randall said. Alcohol impairment is determined by a blood test, and the results can fairly accurately be extrapolated to identify the level of impairment at a given time. A test for marijuana may show a positive result for up to five days after use, and up to 30 days for chronic users, he said. Employers—and law enforcement—simply do not have the tools to prove marijuana impairment.
Using commercial drivers as an example, Randall said employers face a host of liability risks, including tort litigation and claims of negligent hiring and retention.
“Plus, it simply looks terrible when a motor carrier name comes across the news,” he said.
The U.S. Department of Transportation has made it clear that even if someone has been approved or prescribed medical marijuana under state law, motor carriers must not put that driver out on the road. Unfortunately, the DOT requirements conflict with the Americans with Disability Act and Equal Employment Opportunity Commission rules, he said.
The overlapping maze of laws is extremely burdensome to navigate. In addition to the DOT, ADA and EEOC conflicts, there are state workers’ compensation regulations and Occupational Safety and Health Administration rules, Randall said. The OSHA general duty clause requires employers to provide a safe work environment. Some argue that this further bolsters the right to terminate workers who are using marijuana. Most employers don’t want to discriminate based on a card or prescription, but once there is use, they may rely on this general duty clause, Randall said.
“Sometimes an employer wakes up in the morning and he has two options—do I want to be shot today, or do I want to get stabbed today?” Randall quipped.
What the Courts are Saying
Oxender pointed to a notable Michigan case, Casias v. Wal-Mart, 2011 U.S. Dist. LEXIS 15244, Case No. 1:10-CV-781 (W.D. Mich. Feb. 11, 2011). An employee who has been battling brain cancer for five years and used marijuana each evening injured his knee while pushing carts. He tested positive for marijuana and was fired. He argued that he could not be discriminated against and that the Michigan law established public policy that workers can use it and not be terminated. The Sixth Circuit U.S. Court of Appeals found that marijuana is illegal under federal law, and Walmart had the right to maintain a zero-tolerance policy. It also found that such public policy would erode at-will employment in Michigan.
In Coats v. Dish Network, 2014 Colo. LEXIS 40 (Co. 2014), a paraplegic was fired under a zero-tolerance policy for using medical marijuana, even though he said he never used it at or before work. He filed a civil rights case and argued he was fired for engaging in a lawful activity off premises in off hours. The Colorado Court of Appeals last year said an activity couldn’t be lawful unless it is deemed so under both state and federal law. Since it is still illegal under federal law, Coats’ marijuana use was not lawful. The state Supreme Court has agreed to hear the case.
In the end, Oxender said, “If you want to use it, you can, but you have to be careful when you do and that you know your workplace rules.”
Randall said the cases are generally representative of courts’ conservative approach across the country. But as public opinion changes, the courts may swing a different direction. Legislatures are already deviating from federal law based on public pressure. Courts may start adopting public policy arguments, because the legislature and the public think it’s an acceptable use.
What Employers Should Do Now
Many employers already have pretty consistent drug and alcohol policies. Randall advised not changing them. Keep doing random testing and disciplining based on those results, he said.
“Most employers who detect marijuana in a worker’s system can do what they want to and take disciplinary action,” Randall said. “If courts change because of public policy issues, you’re going to have to start treating it differently for medical use.”
Which court is going to deviate from the pack? Stay tuned, Randall said.
Because marijuana is still a federal Schedule I drug, employers should be afforded additional protections in states with medical marijuana laws. He cautioned, though, that the ADA prohibits inquiring about medical issues unless there is a business necessity. So, for a clerical worker, an employer may be prohibited from asking about a marijuana card, he said.
“The ADA can be applicable when there’s an ongoing prescription drug problem,” Oxender said. “It comes down to how it is going to affect the employee and how he does his job.”
Workers’ Comp Quagmire
What happens when an impaired employee is injured? Employers in states without medical or recreational marijuana laws can simply look to their workers’ compensation laws. Some states specifically state that an injury is not compensable if it involves a Schedule I federal drug. Others say it is compensable if the drug has been prescribed.
Of course all of this is contingent on the employer being able to prove the impairment led to the injury, Randall said. In some cases, a court finds someone or something else caused the injury. Oxender said establishing causation is a very heavy burden for employers.
Randall’s favorite workers’ comp case involved a bear handler who was mauled. He had smoked marijuana before work. The workers’ comp judge said the employee was stupid, but it did not matter that the worker was high because grizzlies are equal opportunity maulers. He was awarded $65,000 in medical damages.
The latest developments in the workers’ comp arena concern the approval of medical marijuana as a treatment for an on-the-job injury. Some states have provided for it in their statutes. Others, like Colorado, prohibit insurance companies from being required to pay for it. But Randall said the majority of states crafted legislation without thinking about the associated employment risks.
“Now we have cases and claims pending and they’re making up the case law as they go along,” he said.
In May, a New Mexico court found medical marijuana treatment is compensable after the insurer and employer failed to raise the issue of conflicting federal and state laws. That creates a whole host of problems, Randall said, because state courts are telling self-insured employers and insurance companies to violate federal law. Some have decided not to fight the issue because they don’t want to establish bad case law or suffer from negative public relations, he said.
When Will the Smoke Clear?
Walls asked, what will happen to the drug-free workplace if the federal government reduces marijuana to a Schedule II drug?
“That certainly modifies everything,” Oxender said. “It presents an opportunity for courts to look at it as legal. They may say you can’t have a zero tolerance policy unless you have safety issues. It opens employers up to discrimination suits and payment for medical marijuana for workers’ comp injuries. Employers will have to reevaluate everything and treat it like other prescription drugs.”
For now, the consensus among the experts is that the seed of legalized marijuana has been planted and nothing at this point will stem its growth. The best employers can do is to keep a clear head and monitor and adapt to the evolving legislation and case law to best protect themselves and their workers.
Disclaimer: The views and opinions expressed in this article are those of the individual sources referenced and do not reflect the views, opinions or policies of the organizations the sources represent.