One day at work, Sue is told she has been selected for a random drug test. Reluctantly, Sue submits to the test, knowing she is going to test positive for marijuana. Before the test, she lets her employer know she holds a state-issued card that permits her to use medical marijuana to treat irritable bowl syndrome. A few days later, she is called into her supervisor’s office where she is told that she is being terminated for violating the company’s drug policy. Have Sue’s rights been violated?
The answer to that question depends on a number of factors. The legalization of both recreational and medical marijuana in most states has created a haze of confusion and uncertainty regarding employee rights to off-duty use of marijuana. Many states have broadly similar medical marijuana laws and disability discrimination laws. Most medical marijuana statutes allow people to get a state-issued card that allows them the rights to have a doctor prescribe marijuana for certain medical conditions. Most states also have laws that protect employees from being fired for having the conditions medical marijuana is used to treat. Nevertheless, courts have come to different conclusions about the legality of what Sue’s employer did to her.
A key theme in marijuana employment litigation is the interplay of state and federal law. While medical marijuana is legal in most states, it is still illegal under the federal Controlled Substances Act. Theoretically, a person could be arrested by federal agents for possession of marijuana that is legal under state law.
The most common judicial response to this conflict has been to side with the federal law. Under the Supremacy Clause of the Constitution, federal law pre-empts state law. Employer’s frequently use this “preemption doctrine” to defend their termination of employees who tests positive for marijuana. A straightforward examples of the pre-emption law is Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industry, a 2010 Oregon case. In the federal pre-emption analysis, the court asked only whether the Oregon Medical Marijuana Act stood as an obstacle to the accomplishment and execution of the objectives of Congress. Determining that the Oregon Medical Marijuana Act does encourage Oregonians to violate the Controlled Substances Act, it was an obstacle to the intent of the CSA. The court sided with the employer.
Most states have disability discrimination laws that protect employees from termination on the basis of a disability, and almost every condition medical marijuana would be used to treat would qualify as a disability under these laws. Still, state courts have come to different positions on whether their disability laws protect the users of medical marijuana. In Massachusetts, for examples, the Supreme Judicial Court found that a plaintiff who had been fired for medical marijuana usage had a valid cause of action under the state disability discrimination statute. But recently in New Jersey, a court held differently. In Wild v. Carriage Services, the Appellate Division of the Superior Court found the New Jersey Law Against Discrimination does not require employers to make a reasonable accommodation for marijuana users because the Compassionate Use Medical Marijuana Act does not contain any employment-related provisions.
When New York passed its Compassionate Care Use Medical Marijuana Act, it did include a provision that protected medical marijuana card carriers under the New York Human Rights Law. Similar legislation is now pending in New Jersey. Such a change in New Jersey would throw the holding of Wild v. Carriage Services into question.
Privacy law may also make a difference for Sue. In New Jersey, for example, it is illegal for private employers to randomly drug test employees unless they are in safety-sensitive positions. New York employees do not enjoy this protection.
In other states still, federal law has pre-empted state privacy laws. Colorado law, for example, protects employees’ lawful off-duty conduct, yet, the Colorado Supreme Court has held that because marijuana use remains illegal under federal law, the state’s off-duty conduct protections give way to the Controlled Substances Act.
If you have questions about medical marijuana use and the security of your job, contact Michael Poreda.