4 burning questions about medical marijuana

2. How do state medical marijuana laws affect companies that work with the federal government?

The Drug Free Workplace Act (DFWA) requires some federal contractors and all federal grantees to enforce zero-tolerance work policies that prohibit the use of illegal drugs in the workplace. As a consequence, private businesses that fall under the DFWA's definition of federal contractor or grantee frequently ask: What about medical marijuana?

A few state statutes legalizing marijuana for medicinal purposes have recognized the conflict between federal laws, like the DFWA, and state medical marijuana laws. These state statutes provide an exemption that excludes the authorization of marijuana use for medicinal purposes if federal laws prevent it. Az. Rev. Stat. [36-2813 (2011)] says that "unless failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate" based on a qualified patient's testing positive for medical marijuana. 

The DFWA does not specifically regulate off-duty drug use, however. Nor does the DFWA require drug testing by companies that qualify as a federal contractor or grantee.

Thus, plaintiffs' lawyers representing employees will highlight and argue that any exclusion for federal law purposes does not apply to off-the-clock activities. In the end, the determination of this issue will likely be raised in the highest court (pun intended) and will involve complex federal preemption arguments and analysis.

In the interim, employers who fall under the purview of the DFWA should make sure their policies expressly prohibit drugs in the workplace, and they should know whether they are in a state that would allow for a zero-tolerance policy. These employers should also consider obtaining guidance from the Department of Labor or other agencies.

3. Are employers required to accommodate an employee's use of medical marijuana if used to treat a disability?

The Americans with Disabilities Act (ADA) prohibits discrimination against employees with disabilities, i.e., physical or mental impairments that substantially limit major life activities. [See 42 U.S.C. § 12102] Employees who legally use prescribed drugs to treat a disability are generally protected under the ADA. The protections afforded under the ADA generally impose a legal duty on employers to accommodate the employee's drug use, including potential side effects. If, for example, an employee takes medication to treat a disability, and that medication causes the employee to become drowsy, the employer may have to accommodate the employee's medication schedule by conforming the employee's work schedule. 

Naturally, the employer becomes concerned about an employee "lighting up a joint" at work because it is an ADA-protected activity. But, employers can relax here. The ADA explicitly excludes from protection employees who use illegal drugs. [See 42 U.S.C. § 12114]  Notably, an employee's marijuana use need not occur on the same day or immediately before to justify an adverse employment action. Courts generally hold that "an individual is currently engaging in the illegal use of drugs if the drug use was sufficiently recent to justify the employer's reasonable belief that the drug abuse remained an ongoing problem." [See Mauerhan v. Wagner Corp., 649 F.3d 1180, 1187 (10th Cir. 2011)]

And, marijuana remains illegal under federal law. To date, state courts have generally held that an employee's right to use medical marijuana does not impose an obligation on employers to accommodate that use under state law. Of course, the judicial decisions obviating the need for employers to provide employees using medical marijuana with a disability accommodation are not from states with explicit anti-discrimination medical marijuana provisions. 

In states prohibiting discrimination on the basis of medical marijuana use, employers need to determine the scope of liability under applicable state disability laws, if any. These employers must also ensure that their disability policies are enforced uniformly to avoid arguments that the employer applied policies selectively and discriminatively to employees who have disabilities like cancer, HIV/AIDS, glaucoma or multiple sclerosis, since these employees are often treated with medical marijuana.   

4. Can employers screen applicants for medical marijuana use? 

The EEOC has issued guidance regarding pre-employment disability-related questions and medical examinations that is instructive. The Commission generally advises employers not to ask applicants about lawful drug use because such questions are likely to elicit information about a disability. However, employers generally can ask about current illegal drug use because such use is not protected under the ADA, and marijuana remains illegal under federal law. [See Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations]  

[Related: Marijuana: An emerging coverage risk]

Practically speaking, employers must comply with applicable state laws, including anti-discrimination provisions relating to medical marijuana. If an employer inquires about medical marijuana use in a state that prohibits discrimination against medical marijuana users, that employer could be exposed. Generally, employers are best served by specifically carving out medical marijuana from pre-screening questions about illicit drug use.

The landscape of legalized marijuana use is relatively uncharted territory. Employers need to be cognitive that the treatment of marijuana from state to state is now different, and one-approach solutions are more difficult. Companies should work closely with their counsel to monitor this rapidly developing area of law to ensure compliance and limit exposure. 

Thomas R. Bundy, III, Esq., is a partner at Sutherland Asbill & Brennan LLP in Washington, D.C., where he co-heads the labor and employment team and handles a variety of complex litigation matters. He may be contacted at [email protected].

Sean P. O'Brien, Esq., is an associate and a member of the labor and employment team at Sutherland Asbill & Brennan LLP in Washington, D.C. where he represents clients in various commercial litigation matters. He may be reached at [email protected].