November 9, 2010 – Medical marijuana is casting a cloud of confusion over Corporate America.

Pot is legal in 14 states as a prescription painkiller, leaving employers struggling to reconcile zero-tolerance drug policies with a patient’s right to use their medicine.

Human resources managers are grappling with such questions as whether random drug tests constitute discrimination under the Americans with Disabilities Act, what they are legally allowed to ask job candidates and whether they are required to accommodate after-hours and off-site use of medical marijuana.

“It’s throwing employers for a loop,” says Alison Holcomb, an attorney for the American Civil Liberties Union in Washington, D.C.

That’s because many companies have policies that require an employee who tests positive for THC, or Tetrahydrocannabinol (the active ingredient in pot) to be terminated or to participate in some sort of treatment program, even if it’s not necessary, she says.

Companies that receive federal contracts are required to prohibit the use of marijuana as a condition of participation under the Drug-Free Workplace Act of 1988. The federal Department of Transportation also issued new guidelines last year that prohibit the use of medical marijuana for transportation workers in safety-sensitive jobs, including pilots, school bus drivers, truck drivers, subway operators and transit armed security, even in states where it is legal.

“It really boils down to this: An employer’s right to maintain a drug-free workplace is critical,” says Denise Davis, a spokeswoman for the California Chamber of Commerce. “It protects the safety of all workers and limits exposure to potentially costly litigation.”

Where does that leave employers and employees?

The law: A moving target
The landmark 2008 Supreme Court ruling in California, involving a systems administrator who was fired for using medical marijuana by Sacramento-based RagingWire Telecommunication (now known as RagingWire Enterprise Solutions) offers the most definitive guidance for employers so far. The court ruled that:

•Drug testing in the state was legal.

•Firing an employee for use of medical marijuana was not tantamount to discrimination.

•Employers are not obligated to accommodate the use of medical marijuana, even outside work.

In other words, while the state’s medical marijuana laws protect patients from criminal prosecution, it provides no protection on the job. Pot remains classified as an illegal substance under federal law.

“The California Supreme Court gave carte blanche for employers to discriminate against medical marijuana patients,” says Joe Elford, legal counsel for Americans for Safe Access, an advocacy group.

But the door remains open for less rigid interpretation. Currently, seven states that allow medical marijuana have implicit employee protections in place; the law mentions only on-the-job consumption or impairment as grounds for termination. Those are: Colorado, Hawaii, Michigan, Montana, New Jersey, New Mexico and Vermont. Two others, Rhode Island and Maine, have explicit protections for medical marijuana patients written into their legislation.

None has been tested in court.

Legal challenges are underway
The Washington state Supreme Court has agreed to review a case in which a customer service consultant was fired for her legal, at-home use of marijuana.

“We’re arguing that firing that patient is a violation of public policy, because it enters the employer into the confidential physician-patient relationship,” says the ACLU’s Holcomb.

Earlier this year, retail giant Wal-Mart fired a worker in Michigan for using cannabis to alleviate pain related to sinus cancer. The employee claims he never came to work high, but was fired after being tested for drugs.

Human resources departments should tread carefully, contact their legal counsel and adhere to both federal and state laws regarding the use of pot, Holcomb says.

“What I hope is that we’ll recognize we don’t want to force very ill people to decide they can’t avail themselves of this physician-authorized treatment because they can’t afford to lose their job,” she says. “That’s just bad policy, and I don’t think most employers want to support that.” By Shelly K. Schwartz. Source.

Further Reading:
LAWS: Conflicts trap patients on medical marijuana
CLASH: State, federal laws collide

Medical marijuana laws are having an odd effect on many employers: They’re dazed and confused about their obligations to workers who use pot for health reasons.

Employment lawyers say employers are unsure about how far they have to go to accommodate medical marijuana users. Many question whether they’re even required to tolerate medical marijuana use, which is now legal in 13 states. Another six additional states, including New York, Illinois and Massachusetts, are considering medical marijuana bills.

Adding to employers’ concerns is the U.S. Department of Justice’s announcement last month that it would no longer prosecute medical marijuana users, which leaves such matters in the hands of state and local governments.

“It has really come onto everyone’s radar screen,” said Danielle Urban of the Denver office of Atlanta’s Fisher & Phillips. “I’m getting calls from employers saying, ‘I have an employee who tested positive for medical marijuana. What can I do? Can I fire that employee?’”

Her answer? It depends.

Urban said that under federal law, employers are not prohibited from taking adverse actions against someone who tests positive for marijuana. But Colorado permits medical marijuana, and another state law says it’s illegal for an employer to fire someone for engaging in legal, off-duty behavior.

And then there’s the Americans With Disabilities Act to consider. Under the ADA, an employee fired for using pot for health reasons could file a discrimination lawsuit.

“It’s a gray area to know what you can do,” Urban said. “But I think it’s still risky to just fire someone for using it.”

Richard Hurford of the Bloomfield Hills, Mich., office of Ogletree Deakins, has spent the last several months fielding calls from employers inquiring about Michigan’s new medical marijuana law, which went into effect in April. Since then, more than 5,000 Michiganders have registered as medical marijuana users.

He said a key issue for employers is what to do with their zero-tolerance polices. “Those zero-tolerance policies, particularly if someone has been prescribed marijuana, will obviously need to be modified if doing so is deemed a reasonable accommodation by a court or a jury,” Hurford said.

To date, no one has challenged Michigan’s law, Hurford said. But courts elsewhere, he noted, have favored employers in medical marijuana cases.

For example, the U.S. Supreme Court ruled in 2003 that even in states with medical marijuana laws, an employer can refuse to accept medical marijuana as a reasonable explanation for a positive drug test. Then in 2005, the high court ruled that the federal government may enforce the Controlled Substances Act’s prohibition on medical marijuana against those who use the drug under state laws.

In 2008, the California Supreme Court ruled that employers can fire workers who use medical marijuana under the state’s Compassionate Use Act—even if they are off duty and even if job performance is not affected—because it’s illegal under federal law.

“Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees,” wrote Justice Kathryn Mickle Werdeger. “Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.”