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By: Frank Hupfl
Although marijuana remains illegal under federal law, 21 states and the District of Columbia have passed laws permitting marijuana use for medicinal purposes. Two states, Colorado and Washington, have gone a step further, and legalized the sale and use of recreational marijuana to adults 21 and older. In just a few short months, Alaskans will have the chance to make their state the third to legalize marijuana. Whatever your position on the issue might be, the recent trend raises significant issues and questions for employers.
Employers in states allowing marijuana use have been struggling with whether these statutes impact employer policies concerning drug testing and maintaining a drug-free workplace. The conventional wisdom is that employers are free to prohibit their workers from using marijuana. Courts in California, Oregon, Washington and Montana—all states that allow medicinal marijuana use—have upheld employer decisions to discharge employees that were medical marijuana patients and failed a drug test.
A plaintiff in Colorado recently argued that his employer’s decision to discharge him for failing a drug test violated the state’s Lawful Activities Statute. The plaintiff was licensed by the state to use medical marijuana and alleged that he was never under the influence at work. Colorado, like many states, prohibits employers from taking action against an employee for engaging in lawful activities outside of the workplace. The state court of appeals rejected the plaintiff’s argument, and held that the state’s “lawful activities” statute does not bar an employer from discharging an employee for failing a drug test, even if the employee uses marijuana for medicinal purposes. In support, the court found that the Colorado statute did not specify whether an activity’s “lawfulness” was determined by state or federal law, and since marijuana is illegal under federal law, employees that use medical marijuana are not protected from the risk of termination. This past January, the Colorado Supreme Court granted certiorari.
Notably, Arizona, Connecticut, Delaware, Illinois, Maine and Rhode Island have all placed limits on an employer’s ability to take adverse action against employees based on the employees’ medical use of marijuana. For example, Delaware prohibits an employer from taking adverse action against a registered medicinal marijuana user for failing a drug test, unless the employee used, possessed, or was impaired during working hours.
Given the relative infancy of decriminalized marijuana laws in most states, very few courts have confronted the issue and it is unclear how courts will treat these cases. We will, however, continue to keep employers apprised of any developments in this “hazy” area of employment law.