More often than not, our courts have trouble keeping pace with
advances in science and technology. The dilemmas presented by
medical marijuana may be a situation where science and technology
have been unable to keep up with the law and the courts. Meanwhile,
employers are facing tough decisions as more and more states accept
the idea of "medical marijuana".
To understand this problem requires a brief understanding of drug
testing. A drug test is a technical analysis of a biological
specimen (usually urine or blood, but it can also be saliva or
hair) which is used to determine the presence or absence of
various drugs or their metabolites. LabCorp, a nationwide specimen
testing company, has published a chart which gives the approximate
detection periods for different types of substances. For example,
in a urine sample, one can learn if alcohol was ingested in the
past 1-12 hours; methadone in the past 3 days; and barbiturates in
the past day or two. The problem with marijuana is that urine tests
for marijuana are much less likely to show recent usage and instead
detect use in the past 2-7 days for a single use, and will detect
usage in the past 1-2 months in persons who use marijuana regularly
(such as once a week or more), or in users with a high percentage
of body fat. See, Drugs of Abuse Reference Guide,
published by LabCorp. Inc. and retrieved on line August 25,
2010.1
Thus, a positive marijuana urine test could be indicating usage an
hour ago, last weekend, or even three weeks ago. It also means that
a positive test for marijuana does not easily correlate to a
current impairment, such as can be more readily detected in a test
for alcohol, where tests detect both recent use as well as probable
impairment. See also Drug Testing at Work -- A Guide for
Employers, Beverly A. Potter & J. Sebastian OrPali (1998). In
those states where any and all marijuana use is simply illegal, a
properly administered test which is positive for marijuana or its
metabolite THC can be just cause for discharge, or for refusal to
hire without any further inquiry. This is changing as more and more
states legalize marijuana use for medical purposes and give some
protection to employees as part of that law.
This issue presents a unique dilemma for employers who have come to
terms with how they handle employees or applicants who test
positive for illegal drug use versus how they handle persons who
test positive for prescribed painkillers or other drugs. Employers
in various industries who do conduct drug and alcohol tests have
for the most part come to terms with how they must balance two
competing issues: the employer's right and duty to establish
and maintain safe and productive workplaces against their
obligation to accommodate, when reasonable, employees with
disabilities that may require prescription drug use. When that drug
use does not impair safe and productive job performance, employers
tend not to seek disciplinary action. For employees taking
prescribed drugs which can impair someone's safe or productive
job performance, employers have a variety of reasonable options.
For example, an employee performing safety-sensitive job duties
need not be "accommodated" if their physician (or the
employer's retained physician) opines that the prescription
drug use may impair their ability to safely perform the essential
functions of their job. See e.g., Shipleft v. AMTRACK,
1999 U.S. App. LEXIS 14004 (6th Cir. 1999). On the other hand,
someone who can safely and productively perform their non-safety
sensitive desk job while taking a prescribed painkiller, (even
ingesting it at work), would need to be reasonably accommodated
under the Americans With Disabilities Act (ADA) and most state
disability anti-discrimination laws. The problem is not so easily
resolved when the issue is "medical marijuana".
Status of Medical Marijuana Laws - Summer 2010
As of August 2010, fourteen states (and the District of
Columbia) have medical marijuana laws allowing patients to use
marijuana for medical reasons. These states are: Alaska,
California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana,
Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.
It is worth noting that state medical marijuana laws cannot
completely legalize marijuana because the drug remains illegal
under federal law regardless of the reasons for its use. 21 U.S.C.
§§ 812, 844(a); Gonzales v. Raich, 545 U.S. 1,
26-29, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). Thus, neither the
federal ADA nor its implementing regulations have been amended in
any way to treat marijuana as anything but an illegal drug.
However, because almost every state has some form of disability
anti-discrimination law protecting employees at work, which
includes the employer's duty to reasonably accommodate,
employers need to know if medical marijuana must be treated the
same as a prescription for a painkiller. One can anticipate that in
a state allowing medical marijuana use, an employee's physician
might certify that their patient's use of medical marijuana, as
prescribed, would not impair the employee's mental or physical
ability to safely and productively perform the essential functions
of their job, especially if that job did not require
safety-sensitive duties. Of course, under the ADA, the employer who
disagrees with an employee's prescribing physician is entitled
to ask a different physician or require their own medical
examination to determine if an employee taking such a prescribed
drug can safely perform the essential functions of their job.
Americans With Disabilities Act, 29 C.F.R. 1630.14.
Meanwhile, courts are grappling with these issues while employers
are left with problems not easily resolved by reference to the law
or to a drug test.
California: Where Smoking Medical Marijuana Is Legal, But Can Still Get You Fired
California's Compassionate Use Act was approved by
California voters almost 14 years ago in November of 1996. The Act
gives a person who uses marijuana for medical purposes, based upon
a physician's recommendation, a lawful defense to state
criminal charges involving possession and use of marijuana. Just
last year, the Supreme Court of California was called upon to
decide if a person's use of marijuana for medical purposes
protected them from termination from employment where an
employer's drug and alcohol policies considered a positive test
for the illegal drug marijuana to be a dischargeable offense.
In Ross v. Ragingwire Telecommunications, Inc., 174 P.3d
200 (Cal. 2008), Ross was fired when he tested positive for
marijuana in a preemployment drug screen. Ross's physician had
prescribed his use of medical marijuana to treat chronic pain as a
result of injuries sustained while Ross was in the United States
Air Force. Before taking Ragingwire's preemployment drug test,
Ross gave the clinic that was to administer the drug test a copy of
his prescription for marijuana. Ross tested positive for marijuana
and Ragingwire suspended him as a result. Ross then gave Ragingwire
a copy of his marijuana prescription and explained that he used the
drug to alleviate his chronic back pain. The employer stuck by its
drug and alcohol policy and fired Ross for the positive drug
test.
Ross sued Ragingwire under the California Fair Employment and
Housing Act, California's anti-discrimination law, which
protects employees from discrimination because of a disability.
Ross alleged that his former employer violated the law by
discharging him because of his disability, which discrimination
included failing to make reasonable accommodation for his
disability in refusing to allow him to take his prescribed medical
marijuana (much as one might be prescribed any other painkiller)
and still keep his job. Ross also sued Ragingwire for wrongful
discharge in violation of public policy. The lower court dismissed
Ross's claims, and the California Supreme Court affirmed,
holding that, "under California law, an employer may
require preemployment drug tests and take illegal drug use into
consideration in making employment decisions" (emphasis
added).
The Ross Court found it particularly persuasive that
marijuana--even medical marijuana--was still an illegal drug under
federal law. Indeed, the Court opined:
Plaintiff's position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users.
The Ross Court further recognized an employer's legitimate concern about its employee's use of illegal drugs, noting that the California Compassionate Use Act did not change marijuana's status as an "illegal" drug; nor did it create special employment protection for medical marijuana users. The court dismissed Ross's claim for wrongful discharge in violation of public policy on the same basis.
The Oregon Supreme Court recently reached a similar conclusion. See, Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, BOLI 3004 (Or., April 14, 2010). The court held that, while Oregon's medical marijuana statute was silent on the issue of employment discrimination under Oregon's various employment discrimination laws, an employer was not required to accommodate an employee's use of medical marijuana.
Other States Have Provided Anti-Discrimination Provisions To Their Medical Marijuana Laws
Nine of the current states with medical marijuana laws have either adopted explicit employee protections or have arrived at that position by analysis: Colorado, Hawaii, Michigan, Montana, New Jersey, New Mexico, Vermont, Rhode Island and Maine.
For example, Michigan's medical marijuana statute, unlike California's and Oregon's, contains a specific provision prohibiting discrimination against medical marijuana users:
A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act...
Mich. Comp. Laws § 333.26424(4)(a) (emphasis added). It appears that this provision protects employees against discrimination by their employers because they have tested positive for marijuana use so long as they have been prescribed medical marijuana and have the requisite registry card.
A substantial retail chain employer with stores in Michigan is now having to grapple with this law and the unfortunate lack of a reliable drug test which can detect both recent usage, as well as probable impairment. In 2010, an employee of this national retail chain sued his employer for discharging him because he tested positive for marijuana under the company's alcohol and drug testing program.
The lawsuit, filed in April of this year, alleges that the Plaintiff, Joseph Casias, was prescribed medical marijuana by his oncologist to alleviate head and neck pain resulting from an inoperable brain tumor and sinus cancer. Casias, a five year employee with this large retailer--who had received the associate of the year award in 2008--was terminated after he tested positive for marijuana following a post-accident drug test. Casias contended that he did not use medical marijuana during work hours and that he was not under the influence of marijuana at the time of his accident. He sued his employer under Michigan's Medical Marihuana Act2, claiming wrongful discharge in violation of public policy.
This appears to be a case of first impression under those medical marijuana state statutes which specifically provide for some form of anti-discrimination protection. It is noteworthy that Michigan's law does not give unlimited protection to employees using medical marijuana. Specifically, the act does not require employers to accommodate the smoking or ingesting of marijuana in the workplace, nor are they required to permit an employee to or report to work under the influence of medical marijuana. However, given the inability of drug screens to reliably test for recent use or probable impairment from medical marijuana, how can an employer fairly balance the interests of safety in the workplace versus reasonable accommodations for disabilities and a law protecting employees prescribed medical marijuana. In this case, it appears it will not be a drug test or the employer who will decide whether Casias could have endangered himself or others while possibly under the influence, and therefore was properly discharged, it will be a jury weighing testimony, unaided by a definitive drug screen.
Meanwhile, the Michigan Supreme Court could easily part company with the courts in California and Oregon, reaching a different result simply because Michigan's medical marijuana statute articulates an intent to protect persons from disciplinary action. It would be no far leap across the judiciary divide to see a Michigan court seizing on this distinction.
Conclusion
Clearly, the law in this area is still being developed. As states adopt "medical marijuana" laws and employees in all manner of jobs are prescribed medical marijuana, the issues attendant with the use of marijuana as a pain medication will grow. Multi-state employers must pay attention to the jurisdictions in which they operate, and consider how their drug policies conform to the unique medical marijuana laws in those states and anti-discrimination case law in a particular state. Also, they should check with competent employment attorneys practicing in medical marijuana states to ensure they know how courts in that state are interpreting the law.
Assuming "medical marijuana" does become comparable to a prescription painkiller and its use becomes protected in the same manner, an employer will need to treat it in the same manner. That is, weighing their responsibility to provide safe and productive workplaces against the obligation to reasonably accommodate someone whose disability can be alleviated by prescription drug use. It cannot be ignored that this balancing is often greatly aided by reliable drug tests that detect recent and/or excessive non-therapeutic drug usage. Obviously, having such a reliable test could resolve some of the potential disputes where medical marijuana is involved. While there are some saliva tests on the market which their manufacturers claim can detect recent marijuana use, such tests have not yet been accepted as sufficiently reliable in most US markets or with most US employers.
Footnotes
1. Urine tests are the most frequently used drug test by the employers. While blood tests may be a better detector of more recent use than urine, they are costly, invasive and can be difficult to administer. Hair tests, although less expensive and certainly non-invasive, are not used as frequently as urine tests because they do not measure current drug use but rather use of a drug in the past three months or longer. While that is certainly useful for knowing if someone ingested a completely illegal drug, it is not useful for persons ingesting a properly prescribed drug. There can also be legitimate claims that a person is a "fully recovered" addict being discriminated against for prior drug use based on hair samples where use pre-dated rehabilitation.
2. Michigan spells marijuana with an "h".
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