A recent court ruling has added to the small but growing pile of jurisprudence at the intersection of marijuana legalization and labor law. In a decision handed down on September 5, a federal court in Connecticut found that Bride Brook, a federal contractor, had run afoul of that state’s Connecticut Palliative Use of Marijuana Act (PUMA) by rescinding a job offer to Katelin Noffsinger, a medical marijuana user, after she tested positive on a pre-employment drug test. The court granted summary judgment to Noffsinger but declined to award her attorney fees or punitive damages, Jackson Lewis attorney Kathryn J. Russo explains:
Bride Brook argued that its refusal to hire Noffsinger is allowed by an exception to PUMA’s anti-discrimination provision (when “required by federal law or required to obtain federal funding”). It argued that the federal Drug-Free Workplace Act (DFWA) barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law. The court rejected Bride Brook’s argument, noting that the DFWA does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty. …
Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user; rather, it had relied on the positive drug test result. The court dismissed this argument, concluding that acceptance would render a medical marijuana user’s protection under the statute a nullity.
While possession and sale of the drug remain illegal under federal law, as more states relax their prohibitions on either medical or recreational marijuana, this has created legal conundrums for employers, who must rethink their zero-tolerance drug policies lest they end up in the same situation as Bride Brook.
Wednesday morning, the Internet was abuzz with the news that former House Speaker John Boehner had joined the advisory board of Acreage Holdings, a company that grows, processes, and distributes cannabis in states where the drug has been legalized, as had former Massachusetts Governor Bill Weld. The two former politicians, both Republicans, claim never to have tried the drug themselves, but Weld, who was the Libertarian Party candidate for vice president in 2016, has advocated legalizing medical marijuana since the early 1990s. Boehner, by contrast, once said during his time in the House that he was “unalterably opposed” to legalization.
The former congressman attributed his dramatic reversal on the issue to the potential for cannabis as a safer substitute for opioid painkillers, as well as the considerable number of nonviolent drug offenders in the US prison population. Boehner’s change of heart is more than just a quirky political news story, however; it speaks to the rapid pace at which mainstream acceptance of marijuana is growing, even as the drug remains illegal under federal law. Attorney General Jeff Sessions opposes legalization and in January withdrew assurances given by the Obama administration that the Justice Department would not seek to prosecute marijuana users or dispensaries in legal states, but more and more states are moving to decriminalize or legalize the use of marijuana for medical or even recreational purposes.
These changes have major implications for employers, many of whom are unsure how these new laws affect their workplace drug policies, or are beginning to wonder whether rejecting a candidate or firing an employee on the basis of their testing positive for marijuana is actually counterproductive in an uncommonly tight labor market. The latest benchmarking survey from the background-check firm HireRight found that 67 percent of US employers now have policies addressing medical marijuana use, Amy X. Wang reports at Quartz, compared just when 21 percent who said they had such a policy or planned to develop one six years ago.
A recent wave of state laws legalizing medical or recreational marijuana use has created a new compliance quandary for employers in these states, who don’t always know whether their own drug policies are compliant with state law. While marijuana remains outlawed at the federal level, its legalization in 30 states plus Washington DC means many employers are unsure of what they can and can’t do to police employees’ use of marijuana, such as whether medical users are protected under the Americans with Disabilities Act or how marijuana use affects employees’ eligibility for workers’ compensation.
Now, some business associations are urging the Trump administration to issue some guidance or rules to clarify how employers should handle this sticky situation, the Washington Examiner reports:
“We’d like to see [the Department of Labor] issue something just for clarity’s sake,” said a source for one major Washington trade association speaking on background, adding that they aren’t pushing for any particular direction. They just want the administration to say where the lines are drawn.
Medical or recreational marijuana use is being decriminalized or legalized in a growing number of US states. In 2016, voters in California, Maine, Massachusetts, and Nevada passed referenda legalizing the recreational use of the drug, while Arkansas, Florida, Montana, and North Dakota either introduced or expanded policies legalizing it for medical purposes.
Last week, Vermont became the first state to legalize the possession and consumption of recreational marijuana through the legislative process, though the commercial sale of the drug remains prohibited (residents are allowed to grow up to six plants for personal use). At Lexology, Vorys Sater Seymour and Pease attorney Michael C. Griffaton notes that Vermont’s law, which comes into effect July 1, does not require employers to permit the use of marijuana in the workplace or on their premises and “does not create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana.”
New Jersey may follow in Vermont’s footsteps this year. The Garden State has had a medical marijuana law on the books since 2010, but former governor Chris Christie, a staunch opponent of legalization who came into office shortly after that law was passed, took action to limit its applicability, such as tightening restrictions on what medical conditions qualified for a medical marijuana prescription. Newly-elected governor Phil Murphy, who campaigned on a promise to liberalize the state’s marijuana policies, took the first step in that direction last week with an executive order aimed at easing the regulations imposed by his predecessor, the New York Times reported.
Murphy has indicated that he is in favor of legalizing recreational marijuana as well, which he believes would help combat the ills of mass incarceration and racial bias in the criminal justice system. Earlier this month, New Jersey Senator Nicholas Scutari introduced a bill in the state Senate that would legalize the possession and personal use of limited amounts of marijuana and establish a regulatory body to control its legal sale and taxation in the state. The bill also addresses employers’ concerns about marijuana use in the workplace, attorneys from the law firm Porzio Bromberg & Newman explain at Lexology:
Last week, the Massachusetts Supreme Judicial Court became the first court in the US to rule in favor of an employee who uses medical marijuana and claimed unfair dismissal after being fired from her job for failing a drug test, the Boston Globe‘s Dan Adams reported:
Supreme Judicial Court Chief Justice Ralph D. Gants said a California sales and marketing firm discriminated against an employee of its Massachusetts operation who uses marijuana to treat Crohn’s disease when it fired her for flunking a drug test. In Massachusetts, Gants wrote, “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.”
Therefore, he said, employers can’t use blanket anti-marijuana policies to dismiss workers whose doctors have prescribed the drug to treat their illnesses. Instead, antidiscrimination laws require companies to attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ, such as exploring alternative medications or allowing use of the drug only outside of work hours.
The court overturned a lower court’s dismissal of a lawsuit brought by Cristina Barbuto against her employer, Advantage Sales and Marketing, which fired her after just one day on the job when she tested positive for marijuana, even though Barbuto said she had told the company during her job interviews that she used it medicinally after work hours to treat her condition and her hiring manager had said it would not be an issue. The lower court will now retry Barbuto’s case under the guidelines established by the high court. (Read the full ruling here.)