Legal Medical Pot + Drug Testing at Work = Legal Disaster

The current regime of laws about marijuana has started to generate new hard cases: those involving employers who take adverse action against their employees for using marijuana to treat severe medical conditions where medical marijuana has become legal under the laws of several states. Many people are now in a seemingly indeterminate legal situation–under state law they can legally use marijuana, but under federal law their employers are free to test them for marijuana and punish them for having used it.

This conflict within the law is real. In states that have legalized medical marijuana, most companies continue to maintain strict anti-drug policies and subject employees to drug testing. Most of the new state laws legalizing medical marijuana have been silent on these questions, in effect allowing employers to punish employees, or refuse to hire them, for legal behavior that is unrelated to their jobs.

One prominent case shows how courts have typically reasoned about these issues. In Casias v. Wal-Mart Stores, Inc., et al., the Federal Court for the Western District of Michigan ruled that, contrary to the Plaintiff’s claim, the relevant state law, the Michigan Medical Marihuana Act (“MMMA”) “addresses potential adverse action by the state; it does not regulate private employment. Accordingly, his claims must be dismissed.” “Under Plaintiff’s theory,” the Court states, “no private employer in Michigan could take any action against an employee based on an employee’s use of medical marijuana. This would create a new protected employee class in Michigan and mark a radical departure from the general rule of at-will employment in Michigan.”

Other courts have reasoned in much the same way. For example, a Colorado Court of Appeals in Beinor v. Industrial Claim Appeals Office concluded that (1) the medical use of marijuana by an employee holding a registry identification card under state constitutional medical marijuana amendment does not constitute the use of “medically prescribed controlled substances” under statute governing disqualification from unemployment compensation benefits; (2) medical marijuana amendment does not give medical marijuana users the unfettered right to violate employers’ policies and practices regarding use of controlled substances; (3) use of medical marijuana was prohibited under employer’s zero-tolerance drug policy prohibiting “illegal drugs”; and (4) evidence supported finding that employee violated employer’s zero-tolerance drug policy.

On June 18, 2014, a Physician Assistant in Albuquerque, NM sued her former employer, Presbyterian Healthcare Services (“Presbyterian”), for violating the New Mexico Human Rights Act by firing her for using physician-prescribed marijuana and thereby failing to accommodate her medical condition. The Plaintiff in that case is a veteran who was diagnosed with post-traumatic stress disorder (PTSD) resulting from a sexual assault, and had been prescribed marijuana as part of her treatment. Asked about the case, representatives of Presbyterian have affirmed the company’s commitment to maintaining a “drug free workplace.” Based on recently-developed precedent, I think we know how this case is likely to end up.

New York’s medical marijuana law defines all legal marijuana users as disabled, and thus entitled to certain protections from their employers, but how much protection this will actually provide to workers is far from clear. As in other states, New York’s policy will be worked out through a costly, painful, and avoidable process.

Inconsistency and indeterminacy are the enemies of a legal system like ours. We should fix this problem at the federal level.

If you believe your employer has discriminated against you because of a disability or medical condition please contact The Harman Firm, LLP.