More Nuggets for Employers about Cannabis

The legal landscape of cannabis is ever changing and having real time implications on employers across the country.  Employers must have their fingers on the pulse of every single state where their company has a presence.

The tension between federal and state law understandably causes confusion. To begin with, in order to bring a cause of action under the Americans with Disabilities Act (“ADA”), one must be deemed “qualified.” The statute and corresponding regulations explicitly state that, “an individual engaging in the illegal use of drugs is not a qualified individual.” Even more, employers may prohibit the use of illegal drugs.  As we know, marijuana is a Schedule 1 drug under the Controlled Substances Act.  So, under federal law, an employee using marijuana, is not qualified under the ADA to bring a claim.

This federal framework was easy enough, until 1996 when California legalized medical marijuana. Today, eleven states have legalized the recreational use of marijuana, and thirty-three states have legalized medical marijuana. Each state in this Union has a different approach to cannabis.

Many employers see this motley crew of laws across the country and revert to the position of, “We follow the federal law, not state law.” This is a tricky position to take as employers’ responsibilities and exposure varies from state to state.  Courts across the country are faced with similar issues and arguments, yet they are handing down drastically different decisions.

Surprisingly, some decisions out of the east coast have proven to be more accommodating than those from the middle of the country and the west coast.  The Massachusetts case of Barbuto v. Advantage Sales, involved an Employee who was terminated for a positive drug test.  In that case, the Employee had a medical marijuana card for her Crohn’s Disease. The employer argued that it follows the federal law, not the state law.  Remember, recreational use of marijuana is legal in Massachusetts. 

The Massachusetts Supreme Court ruled against the employer saying that if Plaintiff had used prescription medication for her Crohn’s Disease, the employer would have engaged in the interactive process to reasonably accommodate her disability. The Court explicitly said, “The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation.” The Supreme Court went even further saying that the state law’s silence with respect to accommodation, “implicitly recognizes that off-site medical marijuana might be a permissible accommodation.” Thus, in Massachusetts, employers may accommodate medical marijuana.

Moving a bit south to New Jersey, where only medical marijuana is legal, the 2019 case of Wild v. Carriage Funeral Holdings, follows the Massachusetts trend.  In that case, the Employee was prescribed medical marijuana as a treatment for his cancer.  The Employer fired the Employee as he failed to disclose his use of medical marijuana.  The Employee brought a claim under the New Jersey Law Against Discrimination (“NJLAD”).  The Superior Court of New Jersey, Appellate Division, held that the Compassionate Care Act does not preclude an employee from bringing cause of action under the NJLAD. Even more, employers might even be required to accommodate medical marijuana use per the NJLAD.

As we travel a bit west to Michigan, we see a different standard.  The 2012 case of Casias v. Wal-Mart, involves a Plaintiff who was diagnosed with sinus cancer and an inoperable brain tumor at the age of 17.  Plaintiff was terminated because of a failed drug test.  The 6th Circuit ruled that the Michigan Medical Marijuana Act, “does not impose restrictions on private employers…”  The Court went even further saying that the termination does not violate public policy. Thus in Michigan, an employer can terminate an employee based solely on a positive drug test. 

Moving further west to Oregon, where recreational marijuana is legal, we get a completely contradictory holding to the east coast trend.  In Emerald Steel v. Bureau of Labor & Industry the employee had a medical marijuana card.  The Employer required he present for a drug test in order to be hired on a permanent basis.  The Employee informed his employer of his use of marijuana for medicinal purposes. As a result, the Employer terminated the Employee’s employment stating that marijuana possession is unlawful under federal law and the state law does not require an employer to accommodate an employee’s marijuana use.

The Oregon Court of Appeals held that that Oregon that the court respects Congress’ decision to classify marijuana as a Schedule I drug. The Court reasoned that the Supremacy clause requires this respect, thus the Oregon Statute is not enforceable.  It follows that in Oregon, where marijuana is legal, an employer may terminate an employee for use of marijuana.  

The above cases are just a snapshot of the changing landscape of the law in this area.  The decisions and rational vary and are unpredictable.  Employers need to know the law of their state.  Moreover, employers with a multi-jurisdictional presence must ensure that their local policies and procedures as they relate to drugs and disabilities are in accordance with the state law. 

Feel free to contact any of the attorneys at Paisner Litvin LLP, with any questions or concerns.