The Legal Intelligencer TLI Labor Employment June 30 2015 : Page 2

2 • Labor & Employment tu E sd a y, Jun E 30, 2015 Must Employers Accommodate Marijuana Users? By Brian D. PeDrow anD emilia mcKee Vassallo Special to the Legal s states legalize marijuana for medical or recreational purpos-es, employers that wish to regu-late drug use and its impact on the workplace face a host of issues. Employers may be confronted with requests for accommodation of mari-juana use for a medical condition that constitutes a disability under federal, state or local laws. Employers that con-duct substance-abuse testing of appli-cants or employees may now be con-fronted with positive test results for marijuana in states where use is legal, raising the question of whether adverse action may be taken. This evolving area of the law raises questions about the interplay of federal and state laws, some of which remain unanswered. Today, 23 states and the District of Columbia have enacted laws legalizing medical marijuana. Four states and the District of Columbia have legalized the recreational use of marijuana. Legislation to legalize medical use is pending in seven states, including Pennsylvania. In some states where marijuana has yet to be legalized, such as Pennsylvania, state and city legisla-tures have decriminalized its use, including in Philadelphia, which A tinued to be illegal under federal law, the DOJ would defer to state and local authorities “to address marijuana activity through enforcement of their own narcotics laws.” As cities and states move to legalize marijuana’s medical and recreational use, employers face new challenges. PeDrow Vassallo Brian D. PeDrow is a partner in Ballard Spahr’s Philadelphia office. He represents management in employ-ment-related litigation, including dis-crimination and harassment, labor arbitrations and negotiations, and employment contract, wrongful dis-charge and tort claims. emilia mcKee Vassallo is an associate in the labor and employment group in the firm’s Philadelphia office. passed an ordinance decreasing penal-ties for the possession and use of small quantities. Under the Controlled Substances Act, or CSA, marijuana is listed as a Schedule I drug, thereby rendering illegal its use, possession and manu-facture under federal law. In 2013, the Department of Justice issued guidance regarding marijuana enforcement. In the accompanying press release, the DOJ noted that while marijuana con-are meDical Users coVereD? An employee may seek the protec-tion of the Americans with Disabilities Act or state or local laws arguing that medical marijuana use constitutes treatment for an underlying disability. The ADA protects against discrimina-tion in employment on the basis of a disability and requires employers to provide reasonable accommodation to a qualified individual with a disability. The ADA’s protections, however, do not extend to those currently engaged in the “illegal use of drugs.” Thus, the ADA arguably allows employers to take adverse actions against employees for medical marijuana use or to refuse to accommodate such use. The term “illegal use of drugs” is defined as “the use of drugs, the pos-session or distribution of which is unlawful under the [CSA].” However, the term does not include drug use under the supervision of a licensed health care professional. Given this exception, one might argue that medi-cal marijuana use falls outside of the “illegal use of drugs.” Courts do not necessarily agree. For example, in James v. City of Costa Mesa , 700 F.3d 394 (9th Cir. 2012), the court held that because Congress defined illegal drug use in the ADA by reference to federal law (not state law), and medical mari-juana is illegal under federal law, it is not protected by the ADA. Generally, courts have held that no duty exists to provide reasonable accommodation for medical marijua-na use. In Coats v. Dish Network , 303 P.3d 147 (Colo. App. 2013) cert. granted sub nom. (Colo. June 15, 2015), the Colorado Supreme Court held in a 6-0 decision that an employer did not act unlawfully when it fired a quadriplegic worker who used medical marijuana while off duty. The court rejected the plaintiff’s contention that the firing violated a state law that generally pro-tects employees’ “lawful” outside-of-work activities, finding that employees who engage in activity that is lawful under state law but unlawful under federal law are not protected by the statute. The Oregon Supreme Court twice has ruled that an employer need not accommodate a medical marijuana user. In Washburn v. Columbia Forest Products , 134 P.3d 161 (Or. 2006), the marijuana continues on 10

Must Employers Accommodate Marijuana Users?

Brian D. Pedrow And Emilia Mckee Vassallo Special To The Legal

As states legalize marijuana for medical or recreational purposes, employers that wish to regulate drug use and its impact on the workplace face a host of issues. Employers may be confronted with requests for accommodation of marijuana use for a medical condition that constitutes a disability under federal, state or local laws. Employers that conduct substance-abuse testing of applicants or employees may now be confronted with positive test results for marijuana in states where use is legal, raising the question of whether adverse action may be taken. This evolving area of the law raises questions about the interplay of federal and state laws, some of which remain unanswered.<br /> <br /> Today, 23 states and the District of Columbia have enacted laws legalizing medical marijuana. Four states and the District of Columbia have legalized the recreational use of marijuana. Legislation to legalize medical use is pending in seven states, including Pennsylvania. In some states where marijuana has yet to be legalized, such as Pennsylvania, state and city legislatures have decriminalized its use, including in Philadelphia, which passed an ordinance decreasing penalties for the possession and use of small quantities.<br /> <br /> Under the Controlled Substances Act, or CSA, marijuana is listed as a Schedule I drug, thereby rendering illegal its use, possession and manufacture under federal law. In 2013, the Department of Justice issued guidance regarding marijuana enforcement. In the accompanying press release, the DOJ noted that while marijuana continued to be illegal under federal law, the DOJ would defer to state and local authorities “to address marijuana activity through enforcement of their own narcotics laws.” <br /> <br /> As cities and states move to legalize marijuana’s medical and recreational use, employers face new challenges.<br /> <br /> ARE MEDICAL USERS COVERED?<br /> <br /> An employee may seek the protection of the Americans with Disabilities Act or state or local laws arguing that medical marijuana use constitutes treatment for an underlying disability. The ADA protects against discrimination in employment on the basis of a disability and requires employers to provide reasonable accommodation to a qualified individual with a disability. The ADA’s protections, however, do not extend to those currently engaged in the “illegal use of drugs.” Thus, the ADA arguably allows employers to take adverse actions against employees for medical marijuana use or to refuse to accommodate such use.<br /> <br /> The term “illegal use of drugs” is defined as “the use of drugs, the possession or distribution of which is unlawful under the [CSA].” However, the term does not include drug use under the supervision of a licensed health care professional. Given this exception, one might argue that medical marijuana use falls outside of the “illegal use of drugs.” Courts do not necessarily agree. For example, in James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), the court held that because Congress defined illegal drug use in the ADA by reference to federal law (not state law), and medical marijuana is illegal under federal law, it is not protected by the ADA.<br /> <br /> Generally, courts have held that no duty exists to provide reasonable accommodation for medical marijuana use. In Coats v. Dish Network, 303 P. 3d 147 (Colo. App. 2013) cert. Granted sub nom. (Colo. June 15, 2015), the Colorado Supreme Court held in a 6-0 decision that an employer did not act unlawfully when it fired a quadriplegic worker who used medical marijuana while off duty. The court rejected the plaintiff’s contention that the firing violated a state law that generally protects employees’ “lawful” outside-ofwork activities, finding that employees who engage in activity that is lawful under state law but unlawful under federal law are not protected by the statute.<br /> <br /> The Oregon Supreme Court twice has ruled that an employer need not accommodate a medical marijuana user. In Washburn v. Columbia Forest Products, 134 P.3d 161 (Or. 2006), the court concluded that the employer had no obligation to use a drug test that only determined impairment. In Emerald Steel Fabricators v. Bureau of Labor and Industries, 230 P.3d 518 (Or.2010) , the court refused to find a duty to accommodate an employee legally using medical marijuana because under federal law it is illegal.<br /> <br /> While most state statutes legalizing marijuana are silent regarding accommodation, a handful of state laws address the issues. For example, in New Jersey, N.J. Stat. Ann. Section 24:6I-14 is explicit, stating that “nothing in this act shall be construed to require ... an employer to accommodate the medical use of marijuana in any workplace.” In contrast, other state statutes have imposed such an obligation. Nevada requires that an employer attempt to make reasonable accommodations for the medical needs of an employee who legally uses medical marijuana. The employer need not accommodate, however, if it would pose a threat of harm or danger to people or property, impose an undue hardship on the employer, or prohibit the employee from fulfilling any of his or her job responsibilities. New York’s statute provides that a certified patient “shall be deemed to be having a ‘disability’” under the state’s human rights law, suggesting that the condition may warrant accommodation like other disabilities.<br /> <br /> CAN EMPLOYERS STILL USE TESTING?<br /> <br /> Under the ADA, a drug test is not considered a medical examination. Thus, employers generally are free to test applicants and employees without running afoul of the ADA’s restrictions on medical examinations. Employees, however, may challenge an adverse action based on a positive drug test under state laws. For example, in Casias v. Wal-Mart Stores, 695 F.3d 428 (6th Cir. 2012), an employee was terminated after he failed a drug test and asserted that his marijuana use was legal under Michigan law. The U.S. Court of Appeals for the Sixth Circuit upheld the discharge, finding that the state law did not regulate private employment actions.<br /> <br /> Some states, through their medical marijuana statutes, have chosen to explicitly address employee drug testing. Delaware’s statute provides that an employer may not discriminate based upon a registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the individual used, possessed or was impaired by marijuana at work. Similarly, Minnesota’s law prohibits employers from discriminating in hiring or firing based upon a positive drug test, unless the patient used, possessed or was impaired at work.<br /> <br /> These state laws present a practical dilemma for employers: How can employers distinguish between offduty drug use and on-duty impairment, given the urinary cannabinoid detection window, generally recognized as 30 days or more?<br /> <br /> PENNSYLVANIA’S MEDICAL MARIJUANA LEGISLATION <br /> <br /> Pennsylvania currently has legislation pending that would legalize medical marijuana. SB 3 would allow registered patients to purchase and use marijuana from registered and regulated dispensaries. The bill includes a provision that would protect registered cardholders from discrimination in employment. Under the proposed bill, an individual’s status as a registered cardholder would be considered only “if the employer can prove the employee is abusing or misusing the employee’s medical cannabis on the premises of the place of employment during ordinary hours of employment.” An employer also could consider the employee’s status if failing to do so would result in the employer losing “a licensing benefit under federal law or regulation.” <br /> <br /> Pennsylvania’s pending legislation also addresses the use of drug testing in the workplace with regard to cardholding employees. An employer would not be able to consider a positive drug test for cannabis components or metabolites “unless the individual unlawfully used, possessed or was impaired by the medical cannabis while on the premises of the place of employment or during the hours of employment.” Like the Delaware and Minnesota statutes, the question remains how an employer, faced only with a positive test result, is expected to distinguish between off-duty drug use and on-duty impairment.<br /> <br /> Practical Tips <br /> <br /> While the law is unsettled in this area, there are several measures employers can take with respect to their substance-abuse policies to attempt to address issues related to the interplay of lawful marijuana use and disability laws. These include:<br /> <br /> • Prohibit by policy the use of any illegal drug or controlled substance under federal, state and local laws. Amend policies to prohibit not only working under the influence, but also being under the influence of marijuana or with any detectable level of a controlled substance in the employee’s system.<br /> <br /> • Ensure that policies addressing prescribed medication permit only drugs that can be legally prescribed under both state and federal law. Consider including policy language clarifying that marijuana, even if prescribed under state law, remains illegal under federal law and is prohibited by the employer’s policy.<br /> <br /> • Understand applicable state laws and whether they impose a duty to accommodate medical marijuana use.<br /> <br /> • For employers with unions, consider whether there is a duty to bargain over changes to substance-abuse policies. Anticipate that unions may propose modifying policies to accommodate medical and recreational marijuana users in states where it is legal. <br /> <br /> BRIAN D. PEDROW is a partner in Ballard Spahr’s Philadelphia office. He represents management in employment- related litigation, including discrimination and harassment, labor arbitrations and negotiations, and employment contract, wrongful discharge and tort claims.<br /> <br /> EMILIA MCKEE VASSALLO is an associate in the labor and employment group in the firm’s Philadelphia office.<br />

Read the full article at http://www.evergreeneditions.com/article/Must+Employers+Accommodate+Marijuana+Users%3F/2041161/263809/article.html.

Alevistar Group, LLC

Using a screen reader? Click Here