June 28, 2010
In March 2010, national media attention focused on a Wal-Mart in Battle
Creek, Michigan after it fired a 29 year-old man who tested positive for
marijuana use following a random drug test. What caught the attention of the
media – and employment lawyers – was the fact that the employee was battling
cancer and had a prescription for the use of medical marijuana. Media attention
was mostly unfavorable toward the employer, and a lawsuit is expected.
Employers are increasingly facing the difficult question of how to handle
employees who have valid state prescriptions for the use of medical marijuana.
Currently 14 states permit the use of medical marijuana: Alaska, California,
Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico,
Oregon, Rhode Island, Vermont and Washington. Several other states are
considering similar laws, and this fall citizens of California will have the
opportunity to make recreational use of marijuana legal in that state.
Despite this trend, the use and possession of marijuana is still a violation
of federal law. In 2005, the United States Supreme Court held that the federal
government had the right to regulate marijuana as it saw fit regardless of
conflicting state laws permitting its use. Raich v. Gonzales, 545 U.S. 1 (2005).
Nonetheless, states have continued their medical marijuana programs, and
employers are frequently required to deal with the ramifications of those
One source estimates that there are 300,000 registered medical marijuana
users in the United States, and the numbers are rapidly increasing. At the same
time, approximately 84% of employers conduct pre-employment drug screening, 73%
conduct suspicion-based testing, 58% conduct post-accident testing and 39%
conduct random drug testing.
When an employee with a valid state prescription for the use of marijuana
tests positive, employers are faced with a difficult dilemma. This is especially
true since an individual can test positive for marijuana use without being under
the influence of the drug at the time of the test.
Two laws come into play in cases of employment discipline for medical
marijuana use – the Americans with Disabilities Act (ADA) and the law of the
specific state where the employee works. While the developing trend in ADA law
holds that an employer’s discipline for the use of medical marijuana is not a
violation, the law is still a bit murky in this area. Moreover, regardless of
federal law, state laws may provide additional protections to employees under
Under the ADA, an employer may not discriminate against a “qualified
individual with a disability” for obtaining treatment for that disability or for
the side effects of that treatment. However, the ADA expressly provides that an
employer may (1) prohibit the “illegal use of drugs” at the workplace by all
employees; and (2) require that employees not be engaging in the “illegal use of
drugs” in the workplace. The term “illegal use of drugs” means the use of drugs,
the possession of which is unlawful under the federal Controlled Substances Act.
The term thus includes the use of marijuana for any purpose. For that reason,
the ADA should not act as a bar to an employer’s discipline of an employee who
is using medical marijuana.
Nonetheless, if the medical condition for which marijuana has been prescribed
is a disability, a claimant can still be a “qualified individual with a
disability” so long as he or she can show an employment decision was made “on
the basis of” such disability. For an employment decision citing current
marijuana use, this employee would need to show one of the following:
- his or her underlying disability was a motivating factor in the employer’s
decision even if the employer was also motivated by the employee’s “illegal use
of drugs”; or
- his or her “illegal use of drugs” was a mere pretext for discrimination on
the basis of his underlying disability
Aside from the ADA, some federal laws require employer testing of employees.
The prohibition of marijuana use for any purpose continues to be a mandate of
the Drug-Free Workplace Act of 1988 for federal contractors. Additionally,
industries regulated by the Department of Defense and Nuclear Regulatory
Commission have federally mandated requirements to maintain a drug-free
The Department of Transportation has similar regulations and has specifically
determined that transportation workers may not use marijuana even in states
where its use is legal. Every employer also has an OSHA-mandated duty to provide
a save workplace. Permitting an employee to work when there is reason to believe
his or her judgment is impaired by the use of marijuana may violate that duty.
Irrespective of federal law, state laws provide employees varying levels of
protection. For example, the supreme courts of California and Oregon have held
that their state laws merely protect medical marijuana users from state
prosecution, not from employment discrimination. A bill to add employment
protection to the California law was passed in 2009, but was vetoed by the
However, other states have more protections. In Colorado, for example, the
right to use medical marijuana is enshrined in the state’s constitution.
Further, Colorado, like several other states, has a “Lawful Off-Duty Statute”
that prohibits employers from disciplining employees for off-duty legal conduct.
Michigan, home of the Battle Creek Wal-Mart, prohibits any business from denying
“any right or privilege” from a medical marijuana user. However, even in states
that provide some level of employee protection for medical marijuana use, there
is no protection for the employee who shows up to work under the influence.
Employers can take several steps to minimize the risk of an employee lawsuit
for negative employment actions related to the use of medical marijuana while
maintaining a drug testing policy.
- Make sure the drug testing policy clearly prohibits the use of any drugs
and other controlled substances that are illegal under federal or state law
- When faced with an employee believed to be under the influence of a drug,
document the facts that demonstrate the suspicion. It is far easier to defend a
termination based on working under the influence than it is for a positive test.
- If you are in a federally regulated industry such as transportation, make
reference to that fact your policies and in any disciplinary or other negative
employment actions you take. Federal law will trump any stronger state
- If you are not in a federally regulated industry, consider whether the
potential state law exposure is worth the benefits derived from a random drug
testing policy. You may be better off instituting a policy that allows for
accommodation of medical marijuana users who have valid prescriptions and who
will not be under the influence at work.
For additional information, please contact the authors or any other member of
the McGuireWoods Labor & Employment teams.