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 Washingtons 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 Courts 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 Courts decision in this case confirms that the Act was not passed to give employees a free pass to violate their employers 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 employees 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) (UPDATE: Saade and Vasquez are no longer with Oles Morrison Rinker Baker).