With 29 states allowing medical marijuana use, employers may be left dazed and confused as to how medical marijuana will impact employment rights of employers and employees. States have complicated the situation and contributed to the confusion by enacting medical marijuana statutes that vary greatly from state to state. While employers in one state may have full autonomy to make employment decisions based on an employee’s medical marijuana use, the laws of other states may prohibit such decisions and even require accommodation of medical marijuana use. It is vital that construction industry employers understand this new area of employment law and its implications for future employment decisions.1
While the interplay between legalized medical marijuana use and state enacted employment laws varies greatly from state to state, employers may find common ground and clarity in the enforcement of federal employment laws. This clarity at the federal level is due to the preemption doctrine which states that, when federal law conflicts with state law, federal law prevails. The Americans with Disabilities Act, the Family and Medical Leave Act, and the federal Drug-Free Workplace Act are all federally enacted employment statutes that are governed and enforced in conjunction with other federal statutes such as the Controlled Substances Act.
Under the CSA, marijuana is classified as a Schedule I substance, and as long as marijuana remains illegal under the CSA, it remains illegal under other federal statutes such as the ADA, FMLA and Drug-Free Workplace Act. For example, the ADA specifically derives its definition of illegal drugs from the CSA and provides that the ADA does not protect the use of illegal drugs by employees with disabilities. Furthermore, the illegality of marijuana under the CSA preempts the legality of marijuana at the state level. Therefore, as a federal statute, the ADA does not require that an employer accommodate a disabled employee who uses medical marijuana legally under state law.
While certain employers must reasonably accommodate qualified individuals with disabilities under the ADA, the FMLA requires that covered employers provide leave for certain employees with serious health conditions. The anticipated issue between FMLA leave and medical marijuana is employer directed drug testing when an employee returns to work from FMLA leave. Although patient qualifications for medical marijuana vary by state, an employee suffering from a serious health condition may qualify for medical marijuana use. If such an employee actually uses medical marijuana as part of his/her treatment while on FMLA leave, such use may result in a positive drug test upon his/her return to work. From a purely federal perspective, CSA preemption should allow an employer to terminate an employee who takes medical marijuana while on FMLA leave without fear of violating the FMLA.
Similar to the ADA and FMLA, the federal Drug-Free Workplace Act is a federal statute that is enforced in light of the CSA. The DFWA requires federal contractors and grantees to keep the workplace free of illegal drugs. Construction contractors who operate as federal contractors must pay close attention to the requirements of the DFWA, as they must not run afoul of federal law or risk losing federal contracts. The CSA’s preemption of state marijuana laws requires federal contractors to maintain strict adherence to the DFWA regardless of conflicting state medical marijuana laws. Therefore, while the DFWA does not mandate drug testing, employers implementing DFWA compliant drug policies and drug testing must continue to test for marijuana and enforce their current policies accordingly.
Construction industry employers must additionally consider the implications of certain federal restrictions on drug use such as those imposed by the U.S. Department of Transportation. Employers who employ individuals with a commercial driver’s license must follow the drug testing rules promulgated by the DOT and the Federal Motor Carrier Safety Administration. While some states’ medical marijuana statutes explicitly provide that they do not preempt such federal statutory and regulatory schemes, other states’ medical marijuana statutes fail to do so. However, employers required to follow such federal statutes and/or regulations and make employment decisions based on them may do so knowing that federal preemption should protect them when such decisions involve employee use of medical marijuana.
Navigating through the haze created by medical marijuana statutes with regards to state enacted employment laws is more challenging as such statutes greatly differ from state to state. It is therefore vital that an employer knows how a particular state’s medical marijuana statute impacts the employer’s ability to make certain employment decisions related to medical marijuana. With regard to disability discrimination and accommodation, there are three types of state medical marijuana statutes. Statutes which impose a duty to accommodate medical marijuana use, those which are silent on the matter and statutes which explicitly do not create such a duty.
States imposing a duty to accommodate medical marijuana use include Maine, Arizona and Connecticut to name a few. Although many employment law practitioners once thought CSA preemption would provide a solid defense to an employee’s state law failure to accommodate medical marijuana use claim brought in federal court, a recent decision in the District of Connecticut has called into question such a defense.
In Noffsinger v. SSC Niantic Operating Co. LLC, 273 F. Supp. 3d 326 (D. Conn. 2017), the federal trial court found that the CSA does not preempt Connecticut’s Palliative Use of Marijuana Act, which prohibits employers from discriminating based on an employee’s medical marijuana use. The court explained that the CSA does not prohibit employers from employing applicants who use illegal drugs, and thus the CSA does not create the conflict required for preemption of PUMA’s discrimination provision. While this decision is not binding on other federal trial courts, some courts may find Noffsinger persuasive when examining similar state law claims and follow suit.
In states silent on accommodation, such as Massachusetts, where the Massachusetts Act for the Humanitarian Medical Use of Marijuana does not contain an anti-discrimination provision, job protection or private right of action by employees against employers, the courts must interpret the legislative silence. In Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E. 3d 37 (Mass. 2017), the Supreme Judicial Court of Massachusetts held that the employer had a duty to engage in an interactive process with a medical marijuana user who suffered from Crohn’s disease to determine if the user could perform job duties with or without reasonable accommodation under Massachusetts handicap discrimination law.
In contrast to the decision in Barbuto, the Supreme Court of California held in Ross v. Ragingwire Telecommunications, Inc., 174 P. 3d 200 (Cal. 2008) that California’s Compassionate Use Act’s silence on the issue did not imply a duty to accommodate medical marijuana use. While the foregoing decisions reveal the differences in how state courts interpret medical marijuana laws silent on employment discrimination and accommodation, courts are equally as inconsistent in interpreting medical marijuana laws which explicitly provide that such laws do not impose a duty on the employer to accommodate medical marijuana use.
For instance, Washington’s Medical Use of Marijuana Act explicitly provides that nothing in that act requires accommodation for onsite medical marijuana use in any place of employment. While the statute seems clear, in Roe v. TeleTech Customer Care Mgmt., 257 P.3d 586 (Wash. 2011), the Supreme Court of Washington had to examine whether the statute implicitly imposed a duty on employers to accommodate offsite use of medical marijuana. The Roe court held that the statutory silence regarding offsite use did not impose a duty to accommodate an employee’s use of medical marijuana offsite.
In contrast, in Callaghan v. Darlington Fabrics Corp., No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017), a Rhode Island court considered a nearly identical question to that considered in Roe. However, the Callaghan court held that the statutory silence regarding accommodation of medical marijuana use outside the workplace implicitly imposed a duty on employers to accommodate such use. Such contrary interpretations of nearly identical statutory language reveal the complexity involved in employers’ attempts to abide by medical marijuana and employment laws.
While the illegality of marijuana possession and/or use under the CSA maintains the stability of federal employment laws, medical marijuana’s conflicting effect on state enacted employment laws demands that construction industry employers remain informed of the current requirements of such laws in the states in which they employ individuals, as such requirements are constantly evolving. In fact, on June 7, 2018, Colorado Republican Senator Cory Gardner and Massachusetts Democratic Senator Elizabeth Warren introduced a bill which would amend the CSA so that it no longer applies to those following state laws regarding legalized marijuana. If enacted, such legislation could upend CSA preemption at the federal level, much less interpretations of state medical marijuana laws based upon CSA preemption. Prudent construction industry employers should seek the advice of in-house counsel and/or employment law practitioners to ensure their policies and procedures reflect the current requirements of both federal and state employment laws in this revolutionary and constantly evolving area of law.
