Your Medical Marijuana Policy

If they haven’t already, medical marijuana laws may be coming to your state soon. Marijuana’s emergence into the mainstream will be a delicate employee-testing walk for business owners and corporate human resources departments.

As of early November, 23 states and the District of Columbia have legalized marijuana for medical purposes. Two states, Colorado and Washington, have decriminalized recreational use of marijuana. These actions have raised pressing questions for auto dealers and other business owners:

• Does an employer’s strict, no-tolerance drug policy stand up to legalized use of marijuana in their state? 
• If an employee tests positive for marijuana use but has a medical marijuana card, can she be terminated under her dealership’s drug policy? 
• What if an employee tests positive for marijuana use, has a medical marijuana card and is considered disabled under the Americans with Disabilities Act (ADA)? Can he be terminated for violating your drug policy?

Employers are asking these and similar questions as some form of marijuana legalization sweeps through the states. So is your dealership’s zero-tolerance drug policy still valid in a state that has legalized marijuana?

The answer is “Yes.”

Employees using medical marijuana who have been terminated for a positive drug test are increasingly turning to the courts. Fortunately for employers with a drug policy in place, the fired employees have had very little success in the courtroom. To date, all state and federal courts have sided with the employer. California, Colorado, Montana, Oregon and Washington have all held that state statutes authorizing the use of medical marijuana do not trump an employer’s right to demand a drug-free workplace. The lone exception is Michigan.

The Michigan Exception
In Michigan, an employer is not liable for damages upon termination of an employee testing positive for marijuana use. But the employee, absent any other misconduct, will be entitled to unemployment benefits. A Michigan appeals court recently ruled that employees with medical marijuana cards terminated for testing positive are entitled to unemployment benefits from the state. The decision weighed heavily on the fact that state law allowed the use of medical marijuana; and the employees’ claims were against the state, and not a private employer.

Although the facts in court cases to date are different, they have the following in common:

• These employees had a valid medical marijuana card or medical authorization.
• They tested positive for marijuana use.
• They were not under the influence of the drug at work.
• They were terminated in accordance with the employers’ workplace drug policy.

In most cases, the former employee raised some sort of wrongful discharge claim, and in certain cases argued that their employers’ drug policy violated state statutes requiring reasonable accommodation similar to those outlined by the ADA. Despite the employees’ arguments, the courts found an employer is not required to accommodate an employee’s use of marijuana to treat a disabling medical condition.

Still Illegal Under Federal Law
This analysis differed by each court deciding the issue, as each state’s statutes and legislative history were analyzed. The main stumbling block to each employee’s claim was that marijuana remains illegal under federal law, and laws authorizing use of marijuana cannot be interpreted to interfere with a private employer’s decision to maintain a drug-free workplace.

Furthermore, the ADA does not protect against discrimination based on marijuana use, even medical marijuana use supervised by a doctor in accordance with state law — unless federal law authorizes that use. It does not, and a person who alleges disability based on the use of illegal drugs is not an individual with a disability under the ADA.

Even in Colorado, where recreational use of marijuana has been legalized, the Colorado Court of Appeals deems the use of marijuana as illegal given the conflict between state and federal law. In Coates v. Dish Network LLC, the court found that “because activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law, for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.”

Conversely, an activity that violates federal law but complies with state law cannot be “lawful” under the ordinary meaning of that term. Similarly, the California Supreme Court stated, “No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users.”

What’s Required of You
Given the conflict between state and federal marijuana laws, none of the courts that have addressed this employment issue have required an employer to make reasonable accommodation for medical marijuana use.

The Oregon Supreme Court in Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries put it succinctly: “The question that this case poses is how those state and federal laws intersect in the context of an employment discrimination claim; specifically, employer argues that, because marijuana possession is unlawful under federal law, even when used for medical purposes, state law does not require an employer to accommodate an employee’s use of marijuana to treat a disabling medical condition.”

In answer to the question, the Oregon Supreme Court held that, under that state’s employment discrimination laws, an employer was not required to accommodate an employee’s use of medical marijuana.

For now, absent union considerations, a zero-tolerance drug policy at a dealership would apply to all employees, with no exception or accommodation for those using marijuana for medical reasons. But you can be sure that things will change. Unions in states where this issue has arisen have indicated a willingness to confront the issue. They may see fit to intercede in cases where there is no evidence that marijuana is being used on the job or impairing an individual’s ability to perform their work safely.

The Colorado Supreme Court recently heard oral arguments on a case where a medical marijuana user was terminated. The court has not yet rendered a decision.

If you operate a dealership in a state that allows marijuana use, whether for medical or recreational purposes, you should review your existing policies. Be sure that your plan complies with the law and that it specifically prohibits any detectable amount of drugs that are illegal under state or federal law, as opposed to merely prohibiting being under the influence. Put your policy in writing and distribute it to all your employees.

Finally, please note that this article is not intended as legal advice and should not be taken as such. All legal questions should be directed to your attorney.

David R. Missimer Esq. is general counsel and compliance officer for Automotive Compliance Consultants Inc. He spent 28 years representing dealers as a litigator and trial lawyer. [email protected]