marijuanaThe Current State of Medical Marijuana Use

As of December 2014, states where medical marijuana is legal no longer have to worry about federal drug agents raiding retail operations. Hidden within a 1000+ page spending measure, Congress essentially approved lifting the federal ban on medical marijuana, stating that federal agents were banned from such raids.

The provision has been enacted law roughly one year after the Obama administration directed federal prosecutors  to stop enforcing drug laws that contradict state marijuana policies. Since this directive, federal agents have been limited to targeting medical marijuana retailers and growers who are violating other federal laws, such as money laundering or fraud.

The District of Columbia, along with 32 states have legalized the use of medical marijuana and marijuana related substances. While these laws began to pass in states as early as the 1990’s, it has long remained illegal under Federal Law until now.

While these 32 state laws vary in scope and definition, they share many common features. For example, most states require patients who want access to medical marijuana to apply and be approved for a registration or ID card.

Requirements vary in each state, however generally these cards require for a patient to seek approval from a doctor. Once a patient has received doctor approval and has received their ID card, they can purchase and even grow personal batches of medical marijuana. ID Cards are usually granted by a government agency and require annual renewal.

It does not appear that the federal government currently intends to regulate medical marijuana. It has left any such regulations and procedures up to each state for the meantime. However, the federal government’s change in stance on prosecuting medical marijuana is signifying a larger change in the tide of acceptance of medical marijuana. However, not much guidance has been given to businesses and employers on what to do with the current rise in medical marijuana usage.

Given these new developments, what should an employer know about terminating employees for medical marijuana usage?

Some states, although authorizing termination or discipline for marijuana use or intoxication, prohibit discrimination against individuals on the basis of their being medical marijuana registration cardholders. However, many state laws have created exemptions for employers to restrict any use of marijuana in the workplace or premises. In additions, these laws also usually prohibit an employee from being intoxicated on the job, whether or not the usage was within work hours or on the premises. Some jurisdictions, such as California, have case law supporting an employer’s right to terminate an employee who tests positive for marijuana.

However, it still remains unclear if an employer can terminate an employee for use of medical marijuana with a valid prescription during non-employment hours, with the potential to create a wrongful termination lawsuit. Currently, Arizona, Minnesota and Delaware have enacted laws that prevent employers from firing an employee for a positive marijuana drug test if the employee holds a valid medical marijuana card. However, other western states like California, Oregon, Montana and Washington have enacted laws stating that employers are allowed to enforce a zero-tolerance drug  policy at the workplace regardless of whether the state currently stands on medical and recreational marijuana.

Federal laws further complicate matters in this area. For example, under the Americans With Disabilities Act (ADA), illegal drug use is not generally protected for accommodation as its own illness.  But as a legally-prescribed painkiller that is legal under state but not federal law, the protection of workers using medical marijuana is not at all a given.  Many state courts over the last three years, including courts in California, have ruled that employers do not need to accommodate workers who use marijuana medically. Moreover, any employees of the federal government will fall under federal law, not their own states with regards to medical marijuana. Thus, even an employee who is a valid medical marijuana user in Arizona may still lose their job pursuant to federal law.

That being said, I think that the law is going to change as medical marijuana laws gain traction across the country.  However, employers in California, as of right now, you can feel reasonably safe terminating for medical marijuana use.  However, I suggest that you begin thinking about how you might modify your policies to account for a possible change in the law and whether you really could accommodate medical marijuana use.  If you have more pressing things to do than worry about a hypothetical future change in the law, then sign up for my newsletter, and I’ll let you know when the time comes to revisit this issue. Also please contact our employment law attorneys for a consultation at (800) 449-8992 or contact us online.