Can your medical office employees be fired for using legal medical marijuana?

Testing positive for cannabis is a ticket for termination under the kind of “zero tolerance” policy that has come to pervade the American workplace. But what if employees are medical cannabis patients?

Situation

Reggie Sturd, an employee of ABC Corporation, tests positive for marijuana. He denies using or being high at work and claims he has permission under the state medical marijuana program to use cannabis at home to treat his seizures. Although his bosses are sympathetic, ABC fires Reggie for violating the company’s “zero tolerance” drug policy. Reggie sues.

Question

Does Reggie have a valid case against ABC Corporation?

Answer

Probably not, unless:

• The case takes place in Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York or Rhode Island; and
• Reggie can prove that he didn’t use and wasn’t high on cannabis at work.

Explanation

Since 2006, there have been at least seven court cases brought by employees in Reggie’s position. The employee lost each time. But that doesn’t necessarily mean Reggie would lose his case.

The 4 basic rules

Here are the four things we know, based on the current cases:

Rule 1: Cannabis patients can’t use or be high AT work.

Explanation: Most state laws expressly say that employers aren’t required to let an employee/patient use or be impaired on the worksite or during work hours. So if Reggie was using or high on cannabis while on duty, he gets fired.

Rule 2: State laws generally don’t protect against firing for OFF-SITE cannabis use.

The physiological effects of THC and cannabis can stay in the body long after the initial buzz is gone. Consequently, testing positive for marijuana doesn’t necessarily prove use or impairment at the time of testing. The question then becomes whether medical marijuana laws protect patients against being fired for using cannabis away from work?

So far, all of the courts have answered NO. The reasoning: Medical cannabis laws only protect patients from criminal prosecution, not workplace discipline.

Example: Federal court in Michigan upholds firing of Walmart patient for using medical cannabis for brain tumors. “Whatever protection the [state law] does provide users of medical marijuana, it does not reach to private employment,” the court explains [Casias v. Walmart Stores, Inc., 695 F.3d 428 (6th Cir., 2012)].

Rule 3: Nine states DO protect patients from employment discrimination.

Twenty-three states have legalized medical marijuana. Nine of these states include language banning firing, refusing to hire and other forms of employment discrimination against medical marijuana patients, as summarized in the chart below:

Employment Discrimination Protections for Cannabis Patients

Note
(1) Anti-discrimination provisions typically stipulate that an employer can, in fact, deny employment or take other adverse action against a person for medical marijuana if failing to do so would cause the employer to be in violation of federal law or lose a federal contract or funding.

It’s important to note that every one of the medical cannabis firing cases to be decided has taken place in states that don’t include such protections against employment discrimination. We’ll know a lot more when and if cases get decided in the nine protection against discrimination states.

Rule 4: Firing patients for medical cannabis is NOT disability discrimination.

Explanation: All of the medical marijuana states have human rights laws that ban an employer from discriminating against employees because they have a physical or mental disability. These laws also require employers to make “reasonable accommodations” for the medical needs of such employees. Accordingly, patients fired for cannabis use have argued that:

• They have a disability under the state law; and
• Making an exception to zero tolerance allowing them to use marijuana away from work is a reasonable accommodation that their employer must make.

So far, the disability discrimination argument has failed every time—in state courts in Washington, California, Oregon, and Montana, and a federal court in Colorado.

Example 1: Oregon Supreme Court says firing a millwright for using cannabis to treat leg spasms isn’t disability discrimination because the millwright wasn’t actually “disabled” [Washburn v. Columbia Forest Prods., Inc., 134 P.3d 161 (2006)].

Example 2: California Supreme Court rules that reasonable accommodations doesn’t require employer to accept patient/employee use of drugs that are illegal under federal law [Ross v. Raging Wire Telecommunications, Inc., 174 P.3d 200 (2008)].

Caution: New York is currently the only state whose medical marijuana law provides that using medical marijuana is a disability under the state’s disability discrimination law.

Conclusion

So where does all of this leave Reggie in our scenario?

• ABC can fire Reggie if it can show that he used or was impaired at work;
• A positive cannabis test may not be enough to prove use or impairment at work;
• Reggie may thus be able to make a claim by showing that he’s a legal cannabis patient and only used and was impaired off-site; and
• Reggie’s chances are strongest in the nine states that protect patients against employment discrimination.

Disclaimer: This information is current as of December 2014. Because legislative changes are ongoing, managers should check their local laws.