Medical marijuana laws vs. the drug-free workplace: Can the two co-exist?

 
 

It is undisputed that employers benefit from a drug-free work place.  Maintaining sound policies and procedures to achieve a drug-free work place helps to ensure a safe and productive work environment. Taking such an approach also helps employers comply with federal and state regulations. For instance, businesses with federal contracts or that operate under the Department of Transportation must comply with drug testing regulations under federal law that prohibit employees from using marijuana.  Thus, having a drug-free work place policy enables a federal contractor to achieve two goals – (1) promote safety and productivity; and (2) maintain its federal contractor status.

However, the recent emergence of “medical marijuana” legislation has created some confusion for employers who want to maintain a drug-free work place and has left many employers asking the question – can they still fully enforce their drug-free policy? In short, the question is “yes” - at least for those employers in Oregon and Washington.   But, because the legal and employer/employee relationship issues surrounding this topic continue to evolve, all employers with drug-free polices should do their research and ensure that they are adopting and enforcing policies that are indeed enforceable and that cause as little interruption and risk to their business practices as possible.

Oregon and Washington are among 15 states, and the District of Columbia, that currently have medical marijuana laws.  The statutory language varies by state, but each authorizes individuals with qualifying medical conditions to legally use marijuana.  These new laws raise questions as to whether an employee can be terminated for medical marijuana use or claim disability status and require accommodation under the Americans with Disabilities Act. Many employers have been struggling with how to handle violations of their drug-free workplace policies by employees that carry “medicinal marijuana cards” and/or otherwise produce a prescription for medical marijuana.  Some employers have also been forced to defend against claims of disability discrimination raised by employees terminated or otherwise disciplined for appearing for work while under the influence of medical marijuana.   Fortunately, for employers in Oregon and Washington, the State Supreme Courts for each state have issued decisions interpreting the law in each state and providing much needed clarification on what an employer may and may not do when faced with these issues.

In June 2011, the Washington Supreme Court held in Roe v. Teletech Customer Care Management, LLC, decided in June 2011, that the Washington State Medical Use of Marijuana Act does not prohibit an employer from discharging an employee for use of medical marijuana.  The Court noted that Washington’s Medical Use of Marijuana Act was passed only to provide an affirmative defense to qualifying patients, caregivers and physicians for conduct that is otherwise prohibited by law (such as a defense to a violation of a local ordinance or state law prohibiting the personal possession or use of the drug).  The Court’s decision goes on to confirm that the statute explicitly states that it does not require accommodation of any medical use of marijuana in any place of employment. In other words, the Court’s decision in this case confirms that the Act was not passed to give employees a free pass to violate their employer’s drug-free workplace policies and that employers may continue to hold their employees – even those with a lawful medicinal marijuana prescription – accountable under their drug-free policies.

The Oregon Supreme Court issued a similar ruling last year, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries.  In that case, the Oregon Court confirmed that employers are not required to accommodate use of medical marijuana under the Oregon Medical Marijuana Act.   The Court specifically held that an employer was justified in revoking an employee’s offer of permanent employment after he notified the employer of his medical marijuana use.  Following termination, the employee argued that he was discharged because of a disability which the employer failed to accommodate.  The Court sided with the employer that the employee was not protected and the United States Controlled Substances Act – a law that the Court concluded preempted the Oregon statute authorizing use of medical marijuana.

Although the rationale underlying each decision varies; the effect is the same.  Employers in both Oregon and Washington can rest assured they may continue to maintain their drug-free work place policies and procedures and terminate or otherwise discipline employees for medical marijuana use. Thus, the medical marijuana laws in Oregon and Washington can coexist with drug-free work place policies.

Of course, employers may choose whether to make an exception for medical marijuana use.  But, if that is an exception that an employer decides to make, it must be an exception that is applied after a thoughtful consideration of all the safety and business risks involved and done in a manner in which the employer does not unnecessarily expose itself to potential claims for discrimination (particularly if the exception is granted to some but not all employees).

Even if an exception is allowed by an employer, it is imperative for all employers to note that there are still a number of drug testing regulations that must be observed by employers.  For example, medical marijuana regulations vary widely by state; companies with federal contracts that meet certain criteria are subject to the Drug Free Workplace Act; and companies operating under the Department of Transportation must follow detailed drug testing criteria. To be prudent, employers should consult with legal counsel in order to fully evaluate (and to the extent necessary, update) their drug-free workplace policies and procedures to ensure compliance with any applicable regulations, minimize the risk for potential discrimination claims, and avoid potential penalties by the Federal Government.

The foregoing is provided for informational purposes only and should not be construed as legal advice.  Employers are encouraged to consult with an attorney of their choice to discuss their individual circumstances and/or to address any questions they may have concerning this issue.

Ms. Renea Saade and Ms. Jessy Vasquez are attorneys with the employment group of Oles Morrison Rinker Baker LLP, a law firm with offices in Anchorage and Seattle (www.oles.com).   They may be reached at saade@oles.com and vasquez@oles.com, respectively or by calling 206.623.3427 or 907.258.0106.

On Reflection: Corporate Game Changer

On Reflection: Corporate Game Changer

Gamification software from a UW startup makes biz-school case studies more authentic.
| FROM THE PRINT EDITION |
 
 

Imagine you’re the CEO of an airline in crisis. Customers and shareholders are unhappy. Your employees have just gone on strike. What do you do? Give in to union demands? Hold your ground and negotiate? Fire all the employees? 

It’s the first of a cascading set of decisions you must make in The Signature Case Study, a new interactive game developed by Seattle-based Recurrence (recurrenceinc.com) in partnership with the University of Washington’s Center for Leadership & Strategic Thinking (CLST). Players take one of five C-suite roles and each player’s decision changes the options available to the others and affects their total scores based on employee, shareholder and customer satisfaction.

The Signature Case Study takes the case-study method, a paper-based system pioneered by the Harvard Business School, and uses game techniques to make it more entertaining and accessible while also giving students and teachers immediate feedback on the quality of their decision making.

Data on 19 variables derived from real airlines on things like lost luggage, fuel costs, stock prices and customer satisfaction are built into algorithms that drive the game and can result in thousands of academically validated outcomes.

CEO and co-inventor Brayden Olson named the company after Friedrich Nietzsche’s doctrine of eternal recurrence, the notion that all life will repeat itself through eternity. The interactive case study, he says, allows people to learn from mistakes and develop critical thinking skills that improve their judgment so they won’t make similar mistakes in real life.

While traditional case studies depend heavily on the skills of professors to engage students, The Signature Game Study’s software uses game elements to require interactivity, says co-inventor Bruce Avolio, a professor of management at the UW’s Foster School of Business and executive director of CLST.

The game shows players how decisions made early on can narrow their course of action down the road. They also learn the importance of teamwork to overcome the toughest challenges. “Great games can be both more fun and more challenging,” says Avolio, who sits on Recurrence’s board of directors.

The product, released early this year, has already been adopted at more than 30 schools, including the UW, Stanford, Penn State, Johns Hopkins and the University of Texas, to teach leadership, organizational behavior and strategy. The cases sell for $47.50 per student; Recurrence is looking to add cases in areas such as operations, finance, marketing and entrepreneurship. It’s also working with the University of Alabama nursing school to develop a case study to teach such skills as diagnosis and health care management.

With more than 15,000 business schools in the world, Olson says the market is huge. He notes that publishers of printed case studies are selling 12 million a year, but they recognize that the interactive case study is the future and are looking for Recurrence’s assistance in developing them.