The Shifting Landscape of Medical Marijuana

By Tamara Cagney, EdD, CEAP


Rarely have we seen such dramatic changes in attitudes and laws that impact the workplace. The landscape of medical marijuana in the workplace is continually shifting as states take different approaches to this controversial issue. There are new questions about accommodations, discussions about determining impairment, and the impact stemming from recent court decisions. While complex in its scope, marijuana issues generally center on a number of key factors:

* Safety: Will employers be able to maintain a drug-free workplace?
* Compliance: How can employers with workers in multiple states comply with laws that differ from state to state?
* Litigation: Will employers have to accommodate the use of medical marijuana?
* Flexibility: What will accommodation look like?
* Productivity: Will there be an adequate supply of drug-free workers? 

It is crucial for employee assistance professionals to follow these developments as businesses make critical decisions about how they are going to handle this complex issue. Businesses range from having strict marijuana policies that include testing to being “420 friendly” (in other words, having a pot-accepting attitude). It is up to each employer to decide which direction they want to go regarding marijuana and the workplace. 

Federal Requirements Clearer…
At the time of this writing, marijuana was legal or decriminalized in 27 states and the District of Columbia. However, marijuana remains illegal under federal law, and employers, regardless of whether or not marijuana is legal, likely will not want their employees using it at work.

The complicated and confusing arena of medical marijuana in the workplace is the clearest for employers who are subject to federal requirements that require employers to maintain drug-free workplaces. Marijuana remains an illegal Schedule I drug under federal regulations. The Department of Transportation (DOT) continues to ban the use of medical marijuana for all safety-sensitive testing designated positions, as do the Departments of Defense (DoD) and Energy (DOE).

For other employers, there are two kinds of medical marijuana statutes, those that decriminalize use (providing protection from criminal prosecution), and those that decriminalize use and provide employment protections).

… But State Laws are a Patchwork
State laws, however, vary considerably and are summarized in the following sections.

* Some states are silent about the workplace - Decriminalization-only states. Decriminalization-only statutes have been enacted in Alaska, California, Colorado, Georgia, Hawaii, Maryland, Massachusetts, Michigan, Montana, New Jersey, New Mexico, Oregon, Vermont, and Washington. 

* Some states’ courts affirm employers’ rights and responsibility to prohibit use - States that address employment issues. Courts in the following states have ruled that employers may take adverse action following a positive drug test result because decriminalization statutes do not address employment: California, Colorado, Michigan, Montana, Oregon, and Washington. (These states, including Colorado and Washington, where recreational use is legal, provide criminal protection but not employment protection.) Even if adverse employment action is permitted, there still may be consequences for employers. For example, in October 2014, the Michigan Court of Appeals approved unemployment compensation benefits for a medical marijuana user, ruling that the denial of such benefits violated the state medical marijuana law’s prohibition on penalties for use. Three cases in New Mexico have resulted in the courts finding that workers’ compensation organizations have to finance marijuana as medicine.

* Other states provide an increasing level of employment protection - States that address decriminalization and employment. The following states have laws that address decriminalization and employment: Arizona, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Minnesota, Nevada, New Hampshire, New York, and Rhode Island. 

These states ban discrimination based on status – in other words, being an authorized medical marijuana user. Some restrict employers from refusing to hire card holders who test positive on pre-employment tests. Some statutes in these states require accommodation, meaning the employer must enter into an interactive process to determine reasonable accommodations for an employee using medical marijuana.  These states also limit disciplinary action that can be taken for positive test results.

So far, on-duty use accommodation is not required anywhere. Employers are, however, modeling their medical marijuana policies after their policies for the use of prescription medications in the workplace, most of which are already problematic and inconsistently applied.

Another important area of variation is how medical marijuana can be administered. Some states allow people to grow and smoke their own, while others require purchase through dispensaries. Other states restrict the use of “dried plant material” and only allow oils and edibles. Some states limit use to the non-psychoactive marijuana extract cannabidiol (CBD).

Court Cases involving Off-Duty Use of Marijuana
It is the use of marijuana outside the workplace that has most employers perplexed. How does personal off-duty use impact the workplace?

Courts have ruled in favor of employers on the subject of off-duty marijuana use, even when such use is permitted by a state statute. In Coats v. Dish Network, LLC, a quadriplegic employee licensed to use marijuana under Colorado’s medical marijuana act alleged that his termination, after he tested positive for marijuana in violation of his employer’s drug policy, violated Colorado’s Lawful Activities Statute, which prohibits employers from discharging an individual for engaging in lawful, off-duty conduct.

The Colorado Supreme Court rejected the employee’s claim, despite the fact that the employee was not in a safety-sensitive position, had used medical marijuana within the limits of his license, and had never used marijuana on the employer’s premises or while performing work-related functions. The court held that in order to be deemed “lawful” within the meaning of the Lawful Activities Statute, the activity must be legal under federal and state law, and that smoking marijuana, which remains prohibited under the federal Controlled Substances Act, did not qualify.

In Swaw v. Safeway, Inc. the court pointed to an earlier 2011 decision from the Washington Supreme Court, which held that the state of Washington’s medical marijuana law “does not regulate the conduct of a private employer or protect an employee from being discharged because of authorized medical marijuana use.”

Drug Policies and Determining Impairment
As illustrated in the Coats decision, alcohol and drug policies can play an important role in insulating employers from liability when they take action against employees engaging in otherwise “lawful” conduct under state marijuana statutes. To the extent that a specific state has provided some degree of protection from employment discrimination for marijuana users, employers should tailor their policies to comply with the requirements of the law, and ensure that the rules – including any drug-testing procedures – are applied in a consistent manner. 

Just like policies regarding the use of alcohol and legally prescribed drugs, showing up to work “under the influence” of marijuana can and should be prohibited. Impaired workers pose a danger to themselves, their colleagues, and often the public. The Occupational Safety and Health Act’s “general duty clause” requires employers to maintain safe workplaces. In the course of investigating workplace accidents, OSHA frequently has issued citations to employers who had workers with illegal drugs in their systems.

Marijuana Testing is Tricky
But drug and alcohol policies can no longer just prohibit “being under the influence”. This is particularly important since current scientific technology does not confirm impairment from marijuana. Urine drug testing indicates only the presence of metabolites of marijuana. It does not give any information about how recent or frequent the use has been. It does not indicate impairment since THC can be stored for weeks in fat cells and still give positive test results.

Blood testing is being used in Colorado and Washington State to determine marijuana-impaired driving. Employers generally lean away from invasive testing using needles. Detection times are also limited due to how marijuana metabolites break down in the body. Technology for marijuana breath testing is seeing a lot of research and development activity, and these tests could be used by both employers and law enforcement.  But the reality is determining impairment is still illusive.
Employer policies instead should prohibit employees “from testing positive for metabolites of drugs considered to be illegal under state and/or federal laws.” The difference between being “impaired” and an employee showing up for work with the presence of residual amounts of marijuana in his or her system will be increasingly vulnerable to future court challenges.

Keep a Watchful Eye on Legislation
In this rapidly changing landscape, EA professionals and employers need to watch both state and federal legislative developments. Legislation requiring accommodation, restricting employment action based on positive drug tests, and attempting to reschedule marijuana as a Schedule II drug are all important to employers.

A bill introduced by Sens. Cory Booker (D-N.J.), Kirsten Gillibrand (D-N.Y.) and Rand Paul (R-Ky.), would end the federal prohibition on medical marijuana and eliminate the ambiguity surrounding related state laws. The bill – the Compassionate Access, Research Expansion, and Respect States (CARERS) Act – also would change its classification from Schedule 1 to Schedule 2, under the federal government’s five-category drug classification system.

Until a non-invasive technology to determine actual impairment from marijuana is developed, rescheduling marijuana as a Schedule II drug would create far-reaching issues for employers since it does not deal with the issue most pressing employers – is this employee impaired on the job?

Tamara Cagney, EdD, MA, BSN, CEAP, is an internal EAP at Sandia National Laboratories in Livermore, Calif. She is also the President-elect of EAPA. She may be reached at tcagney@sandia.gov.

SIDEBAR

Issues and Action Steps for Employers & EA Professionals

It is important for employers to review written substance abuse policies. Wording must remove confusion. For example, a policy should not make a general reference to “illegal drugs.” Rather it should ban drugs considered to be “illegal under federal and state laws.” Such policies need to take the next step and state that this includes marijuana.

Also, specify what a “drug-free” workplace means to employees. This will need to go beyond a policy that prohibits employees from showing up for work “under the influence.” Likely it will also mean having drugs or their metabolites, including marijuana, in an employee’s system.

Communication about the company’s drug policy, including its treatment of marijuana to both employees and managers, is critical. Finally, employers should look to EAP practitioners to train management to recognize the symptoms of possible impairment due to marijuana use, and make sure supervisors are equipped to take the appropriate safety measures in the event of a drug-related accident.

If employers are confused, imagine what employees are thinking.

EAPs: Dealing with the Effects of Drug Use
Although public attitudes continue to shift and more than half of Americans think marijuana should be legalized, employee assistance professionals will continue to deal with negative realities of drug use. Almost six million American adults experienced marijuana use disorder in the past year, according to a study by scientists at the National Institutes of Health (NIH).

Symptoms of marijuana use disorder include cravings, developing a tolerance, and experiencing withdrawal symptoms, including inability to sleep, nervousness, anger, or depression. The study, published in the American Journal of Psychiatry, found that 6.3% of adults acquire a dependence on marijuana at some point in their lives, and 2.5% of adults have experienced marijuana use disorder in the past year. The researchers interviewed more than 36,000 adults about their drug and alcohol use, and related psychiatric conditions.

They found marijuana use disorder is about twice as common in men than women. Younger people are much more likely than those over 45 to experience the disorder. Researchers note that cannabis dependence is strongly and consistently associated with mental health disorders as well as other substance use disorders.

Like many other conditions EA professionals deal with, there is already a growing gap between those with issues and those who can access treatment. Researchers have found that only about 7% of people with marijuana use disorder in the past year receive any marijuana-specific treatment, compared with slightly less than 14% of people with a lifetime marijuana use disorder.

Summary
Both employers and employees will be looking to EA professionals for help in finding their way through the haze. Stay up on developments in state law, and pay attention to the evolving issues surrounding reasonable accommodation of employees using marijuana as medicine.

-- Tamara Cagney