Medical Marijuana and Opioids in the Workplace

By Albert B. Randall, Jr., Esq., Franklin & Prokopik, P.C.

Navigating federal and state laws regarding medical marijuana and dealing with the workplace implications of the national opioid epidemic are challenging issues facing many businesses today. Currently, twenty-nine states have legalized the use of marijuana for medicinal purposes. However, marijuana remains a Schedule I substance under the federal Controlled Substances Act (“CSA”). This unresolved tension between federal and state law creates many legal uncertainties. Adding to this, the rapid increase in the misuse of opioids presents a serious national crisis that is prompting employers to institute and rely on policies that ensure a healthy and drug-free labor force. Employers also face legal hurdles in this arena, as such drug-free policies must nonetheless comport with relevant state laws and federal guidelines.

Workers’ Compensation: On-the-job Injuries Caused by or Treated with Medical Marijuana/Opioids

The subject of workers’ compensation for medical marijuana and opioid users raises two issues for employers with regards to on-the-job injuries caused by or treated with medical marijuana or opioids. The first issue is whether workers’ compensation covers injuries that are sustained while an employee is impaired from medical marijuana or opioid use. The second issue is whether workers’ compensation insurance must cover the costs associated with medical marijuana or opioid treatment.

Forty-seven states, including the District of Columbia, have in place laws that deny workers’ compensation benefits for injuries sustained while intoxicated. However, even in the states with statutes denying benefits for those injuries sustained while an employee is under the influence, there are often statutory exceptions for drugs that are prescribed or recommended by a physician. For example, Alaska and New Mexico’s workers’ compensation statutes specifically provide for the compensability of injuries sustained while an employee is intoxicated, if the injured worker was under the influence of drugs that were “administered” by a licensed practitioner or taken under a “doctor’s direction.” Although marijuana cannot be “prescribed” due to its Schedule I status, it can be “recommended” by a physician. It is also very difficult to prove intoxication from marijuana at the time of an injury, due to the length of time marijuana remains in the system.

Generally, most jurisdictions will allow opioid treatment as a workers’ compensation medical benefit. However, some states have taken legislative and regulatory measures to limit reimbursement for opioid treatment in efforts to combat the opioid epidemic. States such as Ohio, Vermont, Michigan and Oklahoma have enacted regulations that deny reimbursement for opioid prescriptions that fail to abide by certain state prescribing guidelines and practices. Jurisdictions take varied positions on whether employees are entitled to workers’ compensation benefits for on-the-job injuries treated with medical marijuana. Some jurisdictions have express statutory provisions that alleviate employers and insurers of any obligation to compensate for medical marijuana treatment. Examples of states with such statutory provisions are Colorado, Michigan, Montana, Oregon, and Vermont.

Courts in other jurisdictions have required that employers and insurers reimburse injured workers for medical marijuana treatment. New Mexico was first state court to rule that an injured worker was entitled to reimbursement for medical marijuana treatment in Vialpando v. Ben’s Automotive Services. Maine and Connecticut have issued administrative decisions that have required reimbursement for medical marijuana expenses.

Zero-Tolerance Workplace Policies and Pre-employment Drug Testing

Under the ADA, employers are “entitled to seek reasonable assurances that no illegal use of drugs is occurring or has occurred recently enough that continuing use is a real and ongoing problem.” Accordingly, employers have a right to promote and maintain drug-free workplaces by seeking out qualified, drug-free employees. One of the main issues confronting employers in trying to achieve this objective is whether employers may refuse to hire applicants or discharge employees for opioid and medical marijuana use.

In short, employers may drug test applicants for opiates and medical marijuana, regardless of a state’s law, in order to detect the illegal use of drugs. Testing for illegal drug use is not considered to be a “medical examination” under the ADA and thus, can be administered by an employer as part of its drug-free workplace policy.

An applicant who can justify a positive test for opioids with a lawful prescription is otherwise qualified for the job. Adverse action under such circumstances may raise ADA issues, unless an employer can demonstrate that the applicant cannot perform essential job functions or poses a direct threat. It is also important to note that some state statutes provide explicit protections for applicants who are certified to use medical marijuana. Since the ADA expressly prohibits illegal drug use, the ADA has historically not protected applicants and employees who abuse opioids and/or use medical marijuana. However, the tide may be shifting in this regard in light of recent state and federal court decisions.

Reasonable Accommodation of Employees

Once an employee is on-the-job, prescription opioid and medical marijuana use raises questions of ADA accommodation. Employers generally may not make employment decisions based merely on the presence of opioids on a drug test, as the ADA generally requires accommodation of lawful opioid use, including accommodation for all side effects of the medication. Discipline or discharge from employment under such circumstances could raise ADA issues, unless an employer can show that the employee cannot perform essential job functions or poses a direct threat. However, because the ADA does not protect illegal drug use, employers historically have not been required to accommodate the illegal use of prescription opioids or medical marijuana.    

On the state level, most jurisdictions have taken the position that an employer is not required to accommodate an employee’s medical marijuana use and may terminate an employee on the basis of positive drug test results. However, as noted above, the legal landscape may be shifting in this regard due to recent decisions in both state and federal courts. On July 17, 2017, the Massachusetts Supreme Court issued its decision in Barbuto v. Advantage Sales & Marketing, LLC, holding that a cause of action for disability discrimination could exist against an employer for terminating an employee after testing positive for medical marijuana. The court reasoned that an exception to the employer’s drug policy to permit marijuana use was a facially reasonable accommodation given that medical marijuana was the most effective means of treating the employee’s debilitating condition. Accordingly, the court held that employers have a duty to accommodate medical marijuana use under Massachusetts state law.

On August 8, 2017, the United States District Court of the District of Connecticut became the first federal court to hold that federal laws prohibiting marijuana do not preempt Connecticut state law providing protections for employees and job applicants from employment discrimination based on the use of medical marijuana. In Noffsinger v. SSC Niantic Operating Co., the federal district court ruled that the Connecticut Palliative Use of Marijuana Act (“PUMA”) explicitly prohibits employers from discriminating against applicants or employees who utilize medical marijuana pursuant to state law, and that this explicit protection under state law is not preempted by the CSA, the ADA or the Food, Drug and Cosmetics Act (FDCA).

Although the majority of state and federal courts have long held that employers are not required to accommodate medical marijuana use under the ADA due to marijuana’s status as a Schedule I substance, the decisions in Barbuto and Noffsinger may signal a shift toward the expansion of employment protections for users of legalized medical marijuana.

© Copyright 2017 Albert B. Randall, Jr., Franklin & Prokopik, P.C. All rights reserved. Reprinted with permission.