Some states prohibit termination based on a failed drug test alone, instead requiring proof of impairment, when, unlike alcohol, no scientific measure of impairment has been established. diseases and conditions often capped with an elastic clause, such as California Proposition 215’s “or any other illness for which marijuana provides relief.” As a result, most patients appear to be long-time recreational users with everyday aches and ailments. There are people with serious diseases, such as cancer, HIV/AIDS, and multiple sclerosis, who turn to marijuana in hopes of finding relief, but they account for less than 5 percent of medical marijuana patients in the states that keep records.4 Despite the lack of FDA approval of marijuana medicines being sold in these states, challenges to drug-free workplace policies are underway, as medical marijuana users try to assert a right to use marijuana on the job or just before work5 and recreational users try to establish that daily use off the clock does not impair them during work hours. Some states prohibit termination based on a failed drug test alone, instead requiring proof of impairment, when, unlike alcohol, no scientific measure of impairment has been established. In short, employers face a multitude of complications in states that partially or fully legalize marijuana. How can those with workers in multiple states comply with conflicting laws from state to state? How can employers in legalization states comply with federal law that maintains marijuana is illegal no matter what states say? How can employers accommodate medical marijuana use if a drug test reveals an employee’s protected status as per some state laws and the employee demands accommodation of his or her medical use? How much is it going to cost employers to sort all this out through litigation? On the one hand, they face costs to defend their obligation under federal laws to maintain safe environments and drug-free workplaces. On the other, they face costs to respond to lawsuits from employees and the general public if they knowingly jeopardize public safety through negligent hiring or discrimination as pressure to accept marijuana use by employees intensifies. To appreciate the headaches such entitlements may create for employers and the potential dangers the resulting inability to maintain a drug-free workplace will create for coworkers and the general public, consider the following scenarios:6
later. Seven of the nine still showed impaired performance at 24 hours. Only one was aware of actually being impaired.13 Does marijuana with higher THC levels impair users for a longer period of time? The Netherlands defines marijuana with a THC level of 15 percent or higher as a “hard” drug and may ban it from the Dutch coffee shops where people consume marijuana. In the US, Butane Hash Oil has THC levels of from 75 to 100 percent. Most research on effects has been done using marijuana with low THC levels, from two to four or five percent. (THC is the ingredient that intoxicates and impairs users.) But average THC levels in today’s marijuana range from 12 to 15 percent, a strength that the Netherlands regards as a “hard” drug and may ban from the coffee shops where the country allows people to consume marijuana. A study using marijuana that contained 13 percent THC levels found users’ executive functioning and motor functioning were seriously impaired for many hours after smoking.14 What about extremely high levels of THC? A commercial industry has emerged as states have legalized marijuana for medical use. That industry has figured out ways to increase THC levels in cultivated marijuana and marijuana products, such as THC-infused cookies and candies. Today, marijuana extracts, such as Butane Hash Oil, contain from 75 percent to 100 percent THC. Whether such high levels of THC further extend the length of time a person is impaired after using marijuana is an open question. If future research shows high that THC levels increase the time a person is impaired, more problems will occur for employers if courts ultimately decide they must accommodate marijuana use. Must employers cover medical marijuana costs for employees injured on the job? In New Mexico, the answer is now “yes.” By declining to hear an appeal in October 2014, the New Mexico Supreme Court allowed a landmark case to stand. In Vialpando v. Ben’s Automotive Services, employee Gregory Vialpando suffered an accident that severely injured his back in 2000. Thirteen years later, he filed an application with a workers’ compensation judge claiming that his former employer should pay the cost of the medical marijuana he uses for pain as part of his workers’ compensation benefits. The workers’ comp judge ruled that New Mexico’s medical marijuana program constituted “reasonable and necessary medical care” and that Ben’s Automotive Services must reimburse Mr. Vialpando for his medical marijuana through its insurance company, Redwood Fire &
“Marijuana does a bad thing to the brain, and to judgment, and to memory, and to working memory. People who are using marijuana, kids especially, don't think well.” adolescent girls is associated with a fivefold increase in the risk of depression and anxiety.33 What does all this mean for employers? Today’s adolescents are tomorrow’s workforce. If legalization results in increased marijuana use among adolescents, it will also result in increased brain damage among those who use the drug heavily. This interference with mental and intelligence capacities has grave implications for future workforce readiness and productivity. As Mitchel Rosenthal, MD, founder of the network of residential drug treatment centers known as Phoenix House, says, “Marijuana does a bad thing to the brain, and to judgment, and to memory, and to working memory. People who are using marijuana, kids especially, don't think well.”34 Rising marijuana use, in fact, will compromise not only productivity but also global workplace competitiveness.
Discussion Will employers be able to maintain a drug-free workplace? An aircraft accident on the USS Nimitz in 1981 killed 14 people, injured 48, destroyed 7 planes, and damaged 11 more at a cost of $150 million. Marijuana was a contributing factor: 6 of the dead had metabolites of the drug in their bodies. Various federal laws require all employers to provide a safe and healthy work environment and those with certain safety-sensitive jobs or who have federal contracts or grants to maintain a drug-free workplace. Employers whose businesses are to public safety and security must be able to ensure their employees are not impaired while at work. Otherwise, employers face litigation of a different sort: lawsuits caused by impaired employees that involve injuries or deaths among fellow employees or the general public. Background The need for drug testing to keep employees drug-free originated with an aircraft accident on the USS Nimitz in 1981 that killed 14 people, injured 48, destroyed 7 planes, and damaged 11 more at a cost of $150 million. Marijuana was a contributing factor: 6 of the dead had metabolites of the drug in their bodies. A Department of Defense survey of military personnel the year before had shown that 28 percent of service members used an illegal drug in the past 30 days; in some units, use was as high as 38 percent. The military began developing and implementing drug-testing programs to reduce use among service members. By 1985, past-30-day drug use among military personnel had dropped to 10 percent; by 1988, to 5 percent. Based on this unfolding success in the military, President Reagan issued an executive order that mandated drug testing for all federal civilian employees in 1986.35 Two years later, Congress passed legislation requiring contractors and grantees that receive federal money to maintain drug-free workplaces. The Drug Free Workplace Act does not require drug testing; however, various federal agencies do. For example, the Department of Defense and the Department of Transportation require drug testing for employees in safety-sensitive jobs in the military and the transportation industry.36 Must employers required by DOT to drug-test workers in safety- sensitive jobs exempt those using medical marijuana? The scenario above is similar to an actual case currently being litigated in New Jersey. New Jersey Transit is required by the Federal Railroad Administration and the Federal Transit
Flexibility Scenario “Have you completed your application, sir?” asks Jenny, the person in charge of getting all job applications to the HR department. The small tech firm she works for is hiring a new administrative assistant. “Yes, here it is,” replies Bill. “Also, I’d like to ask, what are your policies on medical marijuana use, since, after all, we live in a state that has legalized it?” “I’m not sure we have any policies. We don’t drug test because we don’t have any safety-sensitive positions. We don’t get federal or other public dollars. I guess our policy is ‘don’t show up to work high!’” Jenny says half-casually. “Well, I have chronic headaches, and marijuana is what I like to use to get relief,” Bill asserts. “But I never smoke it, so there is no public hazard. I also have excellent references from previous employers.” “Oh. Okay,” says Jenny nervously. “Thanks for your application. We will get back to you later.” Bill leaves and Jenny takes the application to her bosses. She informs them of her conversation. The committee immediately dismisses Bill’s application. “We can’t hire a guy who wants to come to work with a marijuana brownie. That is not good for productivity or even safety in our small, cramped offices. Jenny, tell Bill thank you but we chose someone else.” Jenny calls Bill with the news. Clearly disappointed, Bill says, “This is because of my marijuana use, isn’t it?” Jenny says she has no idea why his application was rejected. “You’ll be hearing from my lawyer. State law protects employees from discrimination based on medical marijuana use,” says Bill angrily as he hangs up the phone.
Discussion The importance of flexibility Rhode Island’s medical marijuana law specifically protects use in the workplace. Does that protection apply to job applicants as well? One of the steepest challenges for organizations to overcome is the recruitment and retention of a talented, skilled workforce. Workplace flexibility should include provisions on the employer side (e.g. the ability to move employees around or adapt to changing conditions at minimal cost) and provisions on the employee side (e.g. the ability to take on new and interesting assignments or being able to work from home or other mobile environments). It can lead to higher levels of satisfaction among both employers and employees. And it can, in turn, lead to more satisfied customers, higher profits, and a better return for shareholders.48 Marijuana seems to threaten this balance. As the scenario above describes, flexibility can be affected even before anyone is hired. And that scenario is not fiction. In Rhode Island, a woman is suing the Darlington Fabrics Corporation and its parent, the Moore Company, because they decided not to hire her after learning she was a medical marijuana user. Rhode Island’s law specifically protects marijuana users in the workforce. This case challenges the bounds of that protection – are job applicants protected too? The Washington DC City Council passed a bill to prohibit employers from drug-testing employees for marijuana before a conditional job offer has been made. Once the hiring has taken place, however, the employee must adhere to the employer’s drug policy. A costly legal battle lies ahead as that question gets sorted out. Because marijuana use threatens the safety of workers, as discussed in a previous section, flexibility is also affected. Will employers still be able to shift employees to different jobs within the company? For example, a company that rotates its employees from one job to another to give them an understanding of each job and what it takes for the company to be successful will no longer be able to provide such flexibility if case law determines that the use of medical marijuana is a protected status. Some jobs in almost every company are safety-sensitive to one degree or another, a factor that will greatly limit some employees’ ability to experience all aspects of the business.
Compliance Scenario “Where is this truck going?” Bob asks. As the manager of a large online delivery fulfillment service, Bob oversees thousands of deliveries to all 50 states every day. “This one is going to Rhode Island, with stops after in Massachusetts and Pennsylvania,” replies Candace, who helps oversee dispatch. “What is on the truck?” queries Bob. “The manifest shows medical supplies, but we have a request now to add a pickup while we are in Massachusetts to deliver to Rhode Island,” says Candace. “Oh, what is it?” Bob asks. “The largest medical marijuana supplier in Massachusetts has a delivery of 10,000 units of ‘medical marijuana candies.’ But don’t worry. It is well within Massachusetts state law to transport this amount of marijuana for medical purposes. And the drop-off point is right over the border in another medical marijuana state, Rhode Island,” replies Candace. “Well, no, I don’t think we can do that. We don’t condone marijuana, and we don’t even have procedures for this,” says Bob nervously. He is interrupted by a call from HR. One of his dispatchers is claiming that since marijuana is legal for medical purposes in the state she works and lives in, the company must allow her to use her “medicine” and ignore any THC-positive result on a random drug test. “Okay. Stop the presses,” Bob says. “We have a few problems we have absolutely no procedures for. We gotta take this higher up the chain before we act on any of this. Tell the new Massachusetts shipper we’re sorry but we’ll have to disappoint him for now. Meanwhile, I’m going to upper management to ask for a meeting with HR and Legal to draft some new procedures to cover this.”
Kristen Fox Alston & Bird LLP Atlanta, Georgia Ms. Fox is an associate in the firm’s Labor & Employment Group. Dee Mason President Working Columbus, Ohio Ms. Mason founded Working Partnersin 1997. The firm provides drug-free workplace consultation, training, and support services for approximately 1,700 clients each year across the nation. Kent “Oz” Nelson Chairman and CEO (ret.) United Parcel Service Atlanta, Georgia Mr. Nelson is Senior Advisor to National Families in Action. He currently chairs the board of trustees of the Carter Center, founded by President and Mrs. Carter, and is past chairman of the Centers For Disease Control Foundation and the Annie E. Casey Foundation. Kevin Sabet, PhD President and Cofounder Smart Approaches to Marijuana Princeton, New Jersey Dr. Sabet is the author of Reefer Sanity and also served in the White House Office of National Drug Control Policy under Presidents Clinton, Bush, and Obama. Chuck Wade Executive Director The Council on Alcohol and Drugs Atlanta, Georgia In addition to leading the Council, Mr. Wade also serves as state director of Drugs Don't Work in Georgia. Amy Whitley Chief Diversity and Inclusion Officer VP Corporate Human Resources Programs United Parcel Service Atlanta, Georgia Ms. Whitley serves as vice president of Corporate HR Programs for UPS. National Families in Action thanks Jake Kim for proofreading this White Paper.
State Year Legalized Relevant Laws and Regulations Statutory Employment Protections* Links to Legislation 10. Maine 1999 Maine Medical Use of Marijuana Act, atutes/22/title22ch558-Csec0.html codified at Me. Rev. Stat. Ann. Tit 22 § 2421 et seq.; 10-144 ing/adopted.shtml#anchor602745 C.M.R. Chapt. 122 11. Maryland 2014 Maryland Ann. Code § 13-3301 et seq. mStatutesText.aspx?article=ghg&sectio n=13- 3301&ext=html&session=2014RS&tab= subject5 12. Massachusetts 2012 Mass. Session Laws Chapter 369 § 1 et seq. https://malegislature.gov/Laws/Session Laws/Acts/2012/Chapter369 13. Michigan 2008 Michigan Medical Marihuana Act, ro3gkzdjfbhytxtpif))/mileg.aspx?page=g codified at MCL § etObject&objectName=mcl-Initiated- 333.26421 et seq.; Law-1-of-2008 Dept. of Licensing and Regulatory Affairs Rule 333.101 dminCode/1303_2013- et seq. 105LR_AdminCode.pdf 14. Minnesota 2014 Minn. Stat. § 13.3806 Prohibits employment discrimination based on (1) persons status as registered medical marijuana user and/or (2) registered user’s failed drug test. Allows discipline based on use, possession, or impairment while on premises or on the clock p?number=SF1641&version=0&session =ls88&session_year=2013&session_nu mber=0 15. Montana 2004 Montana Marijuana Act, codified at MCA § 50-46-301 et seq. Expressly does not require employer to accommodate the use of marijuana by a registered cardholder Expressly does not prohibit an employer from including in any contract a provision prohibiting the use of marijuana for a debilitating medical condition Expressly does not permit a cause of action against an employer for wrongful discharge or discrimination based on medical marijuana use htm