As cannabis becomes more mainstream and normalized in American culture, employers are faced with new potential legal challenges regarding workplace rights. Your employee may have the right to purchase and consume medical marijuana – but do you have to allow said employee to partake during work hours? Or allow them to arrive at work impaired?
This depends on the state your office is located in, although the law may be increasingly leaning toward allowing employees to use medical marijuana.
Attorney Gene Markin wrote the following in his piece for the National Law Review regarding employee use of medical marijuana in New Jersey: “Although New Jersey lawmakers cancelled a vote on an adult-use recreational cannabis bill recently, medical cannabis use gained some support following a ruling from the Appellate Division of the Superior Court of New Jersey that an employer’s failure to accommodate medical marijuana use by an employee constituted a valid basis for an employment discrimination claim.” (For further reading, see Wild v. Carriage Funeral Holdings.)
Markin outlines a case wherein the employee of a funeral home, who also a recovering cancer patient, was prescribed medical marijuana under New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to -16. The employee (plaintiff) was in a work-related car accident and subsequently fired for not disclosing his medical marijuana use although there was no indication that medical marijuana use was a factor in the accident. Ultimately, the employee won on appeal after a legal journey which examined disability, privacy, disclosure, and compassionate care.
Markin concludes: “Notably, this case does stand for the notion that additional protections are being afforded to medicinal marijuana patients, and if the vote on recreational marijuana happens anytime soon, questions for employers with respect to employee marijuana use will only continue to surface.
“Employers who seek to terminate or take other adverse action against employees due to drug test results consistent with medical marijuana use should consider the legal ramifications of doing so following this case’s outcome.”
In Ohio, an article written by Benesch Attorneys at Law, Will Employers in Ohio Have to Accommodate Their Workers’ Medical Marijuana Use?, addresses the issue of actual impairment at work citing, “Ohio’s Medical Marijuana Control Program (OMMCP) statute is similar to the NJMMA because it too expressly states that employers are not required to accommodate an employee’s medical marijuana use. Ohio’s statute goes even further, however, and expressly states that the law does not prohibit an employer from refusing to hire, discharge, discipline, or otherwise take an adverse employment action because of a person’s use of medical marijuana. Nevertheless, employers are cautioned not to rely exclusively on a positive test result as the basis for a terminating an employee who is legally using medical marijuana. Indeed, the law seems to be evolving towards showing a reasonable suspicion of actual impairment while at work.”
In the Arizona case Whitmire v. Walmart, an employee who yielded very high urine test results for marijuana metabolites sued after her termination following a slip and fall during work hours; Walmart cited impairment. Yet, “Whitmire sued under the Arizona Medical Marijuana Act (AMMA), the Arizona Civil Rights Act, and similar statutes. The AMMA prohibits employers from discriminating against a person in hiring, termination, and other term and conditions of employment based on a qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana at work during business hours. The Court found that, because Walmart could not establish that Ms. Whitmire was actually impaired, or used or possessed marijuana at work, it violated the AMMA in firing her.”
Given that marijuana metabolites can stay in the system for days, or even weeks after use, and given that there are currently no testing methods that prove actual impairment, employers are on uncertain grounds when it comes to dismissing employees based on drug tests alone.