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Employers Beware: The Cannabis Laws, They Are A-Changin’

February 26, 2019

Of course, laws are changing all the time. But with medical marijuana laws being enacted in states around the country at a quick pace, the list of shifting rights and obligations related to the workplace is growing like a weed.

Background

  1. Even with marijuana still considered an illegal substance under federal law, that tension does not preclude states from making medical marijuana legal, within their border, with their own desired regulations. To date, 33 states have enacted medical marijuana laws, with more to come in 2019
  2. The different state marijuana laws are not uniform across the country and they are under constant judicial review. The courts have begun interpreting these new laws as employees bring claims against employers for various forms of discrimination and violation of the law for termination and other adverse actions related to testing positive for marijuana in employer-required drug tests
  3. Because state marijuana laws are different, maintaining an awareness of each state’s law in which it has an employee working is of paramount importance for all employers

Two Recent Cases on Point

Employee Wins

In Carol Whitmire v. Wal-Mart Stores Incorporated, a Wal-Mart employee in Arizona filed suit after she was fired for testing positive for marijuana in a random drug test. Her suit was based on the Arizona Medical Marijuana Act (“AMMA”) which contains language prohibiting discrimination against an employee who tests positive for marijuana. Thus, under the AMMA, an employer seemingly cannot take adverse action in hiring or terminating an employee if a random drug test reflects marijuana usage. This is a change in the law prior to the AMMA, when such a prohibition did not exist.

The AMMA does allow such discrimination however, where the employer can prove that there was on-the-job usage or impairment. Significant to this ruling, Wal-Mart was unable to prove that Ms. Whitmire was actually impaired when she was on the job. After some evidentiary and procedural wrangling, the court granted summary judgment for Ms. Whitmire on her claim for discrimination under the AMMA.

Employer Wins

However, in another recent decision, under a Michigan medical marijuana law with similar language, a court ruled in Eplee v. City of Lansing, in favor of an employer who rescinded a conditional employment offer when the prospective employee tested positive for marijuana in a pre-employment screening. The prospective employee plaintiff, who was a legal “card holder” under Michigan’s new medical marijuana law (“MMMA”), alleged that Michigan’s law prohibited the employer from rescinding her employment offer based upon the positive marijuana test results.

The court disagreed with the plaintiff because it determined there was no actual legal right to employment where plaintiff only received a conditional offer, which could thus be withdrawn at any time. The court also relied on the fact that the offer was for an at-will position, which the employer could terminate at any time for any reason.

The court concluded, different from the Arizona ruling, that the MMMA does not provide an independent right protecting an employee’s medical use of marijuana under all circumstances and it does not create a protected class of users of medical marijuana.

Key Points to Consider

Employers must stay aware of the medical marijuana laws and how they are being interpreted in every state in which they have employees.

The recent ruling against Wal-Mart was based on the AMMA, because Ms. Whitmire was employed in Arizona. The Michigan case was decided under a law with similar language to the AMMA but resulted in a decision in line with the employer, unlike the Wal-Mart ruling.

Not every state’s medical marijuana law has language as specific as Arizona, prohibiting an employer from taking adverse action in hiring or firing for legal marijuana use, away from the workplace. Some states laws are similar, like in Michigan.

Yet other states’ laws have language just the opposite of Arizona and Michigan, specifically allowing employers to take adverse action when marijuana is discovered through a random drug test, even where its employee is a legal medical marijuana card-holder.

As always, there are exceptions. For example, if an employer is under a separate legal obligation to drug test its employees, it could be exempt from a state’s prohibition to discriminate for a positive drug test. The same exemption can apply where an employer would otherwise lose a license or other benefit if one of its employees tested positive for marijuana.

Has the Workplace Changed?

No state law prohibits an employer from demanding a safe and clean workplace and from requiring that its employees not be impaired while on the job.

However, the recent decisions are only two that raise important new issues under new laws: how can an employer prove impairment in the workplace, and does an at will or prospective employee have rights under such statutes? These scenarios and more are certain to arise and be addressed again in lawsuits, in different states.

Neither decision addressed another issue of an employer’s obligation to provide accommodations in the workplace to legal card holding employees under the new laws. It’s expected that more change is coming as more medical marijuana laws are created and updated.

These Issues May Apply to All Employers

While much has been discussed about the conflicting federal and state cannabis laws, and the challenges confronted by cannabis related businesses (e.g., banking and tax concerns), the employment difficulties discussed herein are universal: all employers may be affected, whether or not you are a cannabis related business.

An Immediate Next Step

If you have employees in states with medical marijuana laws, be sure to have an experienced professional review your employment and drug usage policies in each state, to help you assess how the new laws – and how they are being interpreted and applied by the courts – may apply to your business and employment practices.

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