Tips for In-House Counsel
November 12, 2010
Accommodating Marijuana In The Workplace After Prop 19
Even though California voted down Prop 19, what is the obligation of employers in California and elsewhere to accommodate an employee’s use of medical marijuana?
The proliferation of state laws permitting the use of medical marijuana has added a new wrinkle the already vexing issue of accommodating employee disabilities. The right of employers to drug test employees is widely codified in statutory and case law, and practiced throughout the United States; as is the interrelated right to refuse to hire and/or terminate employees that test positive for illegal drugs. However, these rights to maintain a drug free workplace are colliding with the laws permitting medical use of marijuana. If an employee claims to have a disability that can be treated by using medical marijuana must an employer accommodate the use of an illegal drug, or, can the employer enforce its anti-drug policies and terminate the employee?
California and Oregon have both confronted this issue and answered it in different ways. Each state addressed the questions that should be of concern to employers in states that currently (and will in the future) permit the use of medical marijuana: If marijuana is medically permitted, must employers “accommodate” an employee’s use of the drug to manage a disability? What effect do medical marijuana laws have on the right of employers to administer, and make employment decisions based on drug tests?
The answer to these questions begins with a review medical marijuana laws, and, of the right and ability of employers to invade the privacy of individuals with medical exams and drug tests.
MEDICAL MARIJUANA LAWS
California led the way in enacting a medical marijuana law. California voters approved the Compassionate Use Act (Proposition 215) in 1996, the first such law in the United States. 1 The law removed criminal penalties for the use of marijuana by individuals who possess a “written or oral recommendation from a physician.” 2 In May 2009, the U.S. Supreme Court refused to hear a challenge to Prop 215, and states are currently free to enact such laws. 3
Since 1996, at least thirteen other states have enacted similar laws. The states include Arkansas, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington. 4
Like California’s law, Oregon’s Medical Marijuana Act (“OMMA”) allows the use of marijuana to mitigate the symptoms of a debilitating medical condition. A doctor must document that a person has been diagnosed with debilitating medical condition and that the medical use of marijuana will mitigate the symptoms. Such persons are issued “registry identification cards” that permit the use of marijuana. 5
However, federal anti-marijuana laws remain on the books and technically trump state laws. However, Attorney General Eric Holder announced in 2009 that the Federal Government would not seek to prosecute those supplying and using medical marijuana, providing that they are in compliance with state law. 6
PRIVACY, MEDICAL EXAMS AND DRUG TESTS
Many federal and state laws permit employers to require employees, in certain circumstances, to submit to medical examinations and drug tests. Within specified guidelines, Federal law allows employers to require potential and actual employees to submit to medical examinations. Employers may conduct “medical exams” after a job offer is made, but not before. 7 Such tests “do not have to be job-related [or] consistent with business necessity.” 8 After hiring, medical exams must be “job related and consistent with business necessity.” 9
Unlike medical exams, drug tests have criminal implications and trigger Fourth Amendment concerns. 10 In 1989, the U.S. Supreme Court found the Fourth Amendment allowed drug testing of railroad workers after an accident because the governmental interest in safely outweighed the workers’ privacy concerns. 11 At the same time, the U.S. Supreme Court allowed the Treasury Department to drug test customs workers before promoting them to jobs working with guns, drugs or sensitive information. 12
California adopted its own guidelines for employment medical exams and drug tests. Unlike the United States Constitution that which not contain an explicit right of privacy, the California Constitution expressly affords such a right to its citizens. 13 Nonetheless, even in California, employers are permitted to require drug tests in certain circumstances. In the late 1980’s and 1990’s California courts adopted medical exam and drug testing rules similar to those embodied in federal law. In Wilkinson v. Times Mirror, 215 Cal. App. 3d 1034 (1989) the court approved a publishing company’s blanket pre-employment drug test specifically holding that it did not violate California’s constitutional privacy right. This was followed by Hill v. NCAA, 7 Cal. 4th 1 (1994) where the court implemented a balancing test. The more fundamental the personal autonomy interest, the greater the burden on the employer to justify invading that interest. The court found that the NCAA interest in maintaining the integrity of competition and protecting health outweighed the invasion of privacy imposed by a drug test. The court in Loder v. City of Glendale, 14 Cal. 4th 846 (1997) confirmed the right of employers to drug test everyone who was offered a job, and allowed drug tests for employees up for promotions.
THE DISABILITY LAWS
The Federal Government, and many states, have enacted laws which prohibit employers from discriminating against employees with disabilities, and requiring that employers accommodate such disabilities if it will permit an employee to perform the essential functions of his or her job. The federal disability laws prohibit employers from using an employee’s disability as a reason to make an adverse employment decision, including refusing to hire, promote or terminate. These same laws require employers to “accommodate” a disability if it will permit the employee to perform the essential functions of his or her job. 14
CALIFORNIA AND OREGON – A TALE OF TWO STATES
A central issue for the courts confronting the intersection of the disability and medical marijuana laws has been the fact that marijuana remains illegal under federal law. As discussed below, the California Supreme court used this fact to hold that employers need not accommodate the use of medical marijuana. An Oregon court was only concerned with whether the use of medical marijuana was in compliance with Oregon law, and the federal laws promoting a drug free workplace. The illegality of marijuana under federal law in general did not concern the Oregon court.
Currently, as a result of judicial and legislative maneuvering, employers in California are not obligated to accommodate an employee’s use of medical marijuana. The California Supreme Court directly addressed the issue in Ross v. RagingWire.15 There, an employer offered Mr. Ross a job. Based on a doctor’s advice, Mr. Ross used marijuana to treat chronic pain from air force injuries. Before taking a pre-employment drug test, Mr. Ross disclosed his use of marijuana. He failed the test and the employer fired him based on its policy of denying employment to applicants who test positive for illegal drugs. Mr. Ross argued that just as it would violate the disability laws to fire him for using insulin or Zoloft to treat maladies, the same should hold true for marijuana.
The Court rejected this view based largely on two arguments. First, medical marijuana is not a prescription drug. Under the law a patient is “recommended” the drug by a doctor. Marijuana is illegal under federal law so it cannot be a prescription drug. The Court also reasoned that the enacting proposition only exempted users and providers from the criminal laws, but said nothing about employment.
The dissent, in responding to the majority’s claim that Proposition 215 did not address the employment setting, provided a very insightful bit of legal reasoning. The dissent noted that surely California voters “never intended that a person who availed themselves [of Prop 215] would thereby disqualify themselves from employment.” 16
In response to the RagingWire decision, the California legislature passed Assembly Bill 2279 which would have effectively overturned the decision and recognized medical marijuana as a legitimate accommodation. However, in October 2008, Governor Arnold Schwarzenegger vetoed this bill. 17
In contrast, an appeals court in Oregon held that an employer engaged in disability discrimination when it fired an employee for using medical marijuana to treat nausea and stomach cramps. Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 220 Or. App. 432 (2007). In Emerald, a drill press operator was fired after he disclosed that he used marijuana pursuant to Oregon’s Medical Marijuana Act (“OMMA”). Unlike the California court in RagingWire, the Oregon court was unconcerned by federal laws criminalizing marijuana or requiring drug free workplaces. The court reasoned that medical marijuana was not illegal under Oregon law and thus the employer was required to accommodate its use.
WHAT IF AN EMPLOYER IN CALIFORNIA DESIRES TO ACCOMMODATE AN EMPLOYEE’S MARIJUANA USE?
We represent California clients that have expressed a desire to allow certain valued employees to use marijuana (under a doctors care) even though such employees would otherwise violate their anti-drug policies. They are concerned that allowing some, but not all employees such a right can create other liabilities.
It is always true that the selective treatment of employees can create resentment in, and potentially legal claims by, other employees. Our advice here has been that even in states like California where there is no obligation to accommodate medical marijuana use, employers can make exceptions for certain employees within the following guidelines: (1) The employee cannot be permitted to use of marijuana at work; (2) Where employees work in jobs that involve sensitive information or present safety issues, then employers should not allow their use of medical marijuana; and (3) As much as possible keep the marijuana use confidential. And in fact, our clients that have treated medical marijuana like other non-illegal drugs have encountered no problems.
Following Attorney General Holder’s decision to limit the federal prosecution of medical marijuana use, even more states are considering adopting such laws.18 Such laws are under consideration in New Hampshire, New Jersey, Illinois, and Minnesota. Inevitably, additional states will confront the question of whether employers must accommodate medical marijuana use. 19 Employers in states where the courts and/or legislatures have not resolved the conflict between disability and medical marijuana laws are faced with a quandary: Are employers required to accommodate an employee requesting the use of medical marijuana?
Our judgment is that the Oregon decision will be an outlier and that most states will adopt the California view that employers need not accommodate medical marijuana use. However, an employer that acts on that assumption, and fires an employee for using medical marijuana risks becoming the test case in their state. This explains, we think, why risk adverse employers who receive requests from valued employees to use medical marijuana, under the legitimate care of a doctor, are quietly treating the situation as they would a request to use any prescription drug. Although this practice is not without risk, it may be the best course of action in states where this issue remains unresolved.
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1 Cal. Health & Safety Code sec 11362.5
2 Cal. Health & Safety Code sec 11362.5
3 San Diego County v. San Diego NORML, 08-887; San Bernardino County v. California, 08-897
4 NYT, Oct. 19, 2009 “U.S. Won’t Prosecute in States That Allow Medial Marijuana”; see also National Organization for the Reform of Marijuana Laws (NORML) website.
5 Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 220 Or. App. 423, 426 n.1 (2007); ORS 475.300-475.346; ORS 475.309; ORS 475.316; ORS 475.319; ORS 475.342.
6 NYT, Oct. 19, 2009 “U.S. Won’t Prosecute in States That Allow Medial Marijuana”
7 42 USC § 12112(d) (3); 42 USC § 12112(d) (2) (A).
8 29 CFR § 1630.14(b) (3).
9 42 USC § 12112(d) (4) (A
10 The Fourth Amendment to the United States Constitution prohibits “unreasonable searches and seizures.”
11 Skinner v. Railway Labor Exec. Assn. 489 U.S. 602 (1989)
12 National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)
13 Cal Constitution Art. I Sec. I (“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”)
14 42 U.S.C. § 12101 et seq.
15 42 Cal. 4th 920, 174 P.3d 200 (2008).
16 Ross v. RagingWire,42 Cal. 4th 920, 174 P.3d 200 (2008).
17 This veto prompted many pro-marijuana websites to mockingly post video of Gov. Schwarzenegger smoking marijuana in the documentary Pumping Iron.
18 USA Today, “More States Move Toward Allowing Medical Marijuana Use”, March 26, 2009.