• Jamie

Cannabis in the Workplace

Marijuana is being recognized as a medicine, however, before a medical patient goes to fill their prescription they may want to think about the potential consequences before deciding to do so. Testing positive for marijuana could lead an employee into uncertainty regarding their employment status for the future. Even though medical marijuana is now legal across many states, people need to be cognoscente of the repercussions involving medical marijuana use and how it pertains to company policies. The problem that many employers are now facing is while laws are changing, the company policy isn’t. So, what happens when a new law disrupts a company’s current employee policy?

Marijuana is still considered a Schedule 1 Drug federally, making it illegal. The Controlled Substances Act (CSA) is a federal legislation passed in 1970 as a part of the Comprehensive Drug Abuse and Prevention Act. This act specifies how certain substances—such as marijuana are regulated under federal law. There have been a number of cases state-to-state involving terminations because of medical marijuana use on and off the job. Patients want to utilize their medicine but on the other hand, employers receiving government funding must abide by rules outlined in the Drug-Free Workplace Act of 1988, which has a zero-tolerance drug policy for employees. Those employers are required by federal law to terminate employees that fail such tests. We will take a look at a few rulings that could prove to have an impact on future cases of a similar nature.

In the case of Coats v. DISH Network, Colorado supreme court ruled in favor of DISH Network; citing that while Coats did have a valid card and did not use medical marijuana during work hours, he was unlawful under federal law by having select compounds in his system. Coats challenged the ruling with the argument that his dismissal violated Colorado’s Lawful Off Duty Activities Statute, which prohibits termination of an employee for unlawful off-duty activities during non-work hours. In the end; the supreme court upheld the ruling because marijuana is still federally illegal. Another case in Michigan proved to have a similar result to that in Colorado, where the rulings were in favor of the employer. Historically, workers who were fired for off-duty medical marijuana use have lost lawsuits where they challenged their employer’s decision.

By contrast, a new shift in the way courts are approaching cases is evident in the case of Barbuto v. Advantage Sales, a Massachusetts court ruled in favor of the defendant. Barbuto disclosed that she had a medical marijuana card and while she did not use during work hours, was still fired. Ultimately, the court declared “The fact the employee’s possession is illegal under federal law, doesn’t make it unreasonable to accommodate.” Other cases such as Noffsinger v. SSC Niantic Operation, (Connecticut) and Callaghan v. Darlington Fabrics (Rhode Island), prospective employees were denied employment, pursuant to neutral drug-testing policies, when their post-offer pre-employment drug tests returned positive for marijuana. In all of these cases, the prospective employees disclosed their use of medical marijuana to treat a disability. The employers filed motions to dismiss due to the fact that federal law supersedes state law. These rulings were all overturned in favor of the employees. The courts recognized causes of action under state law disability discrimination statutes and under the discrimination clauses contained in state medical marijuana acts. These rulings may be a part of a new wave of more compassion towards lawful cardholders.

In 2016 Pennsylvania introduced the Medical Marijuana Act, the Medical Marijuana Act (MMA or the Act) grants rights and protections against discrimination. The MMA states “nothing requires an employer to commit any act that would put an employer in violation of federal law.” Many states’ medical marijuana acts include clauses prohibiting discrimination based on an employee’s status as a card holder, Pennsylvania is one of them. The Pennsylvania Human Relations Act, however, under the Americans with Disabilities Act (ADA) qualified that individuals with a disability are protected from discrimination and are entitled to reasonable accommodation. Consequently, refusing to hire, terminating or administering any other action related to the employees’ underlying “serious medical condition” may run a foul with the ADA and/or the PHRA (Pennsylvania Human Relations Act). These acts protect patients from being treated unfairly due to their medical condition.

Laws can be interpreted differently from state to state based on the aforementioned rulings, which on the surface seem to be very similar. Until a more overarching law can be determined there will continuously be a discrepancy in the outcome of these cases. As legislation is updated, states are becoming more open to accommodating medical marijuana programs and protecting their cardholders’ rights as certified patients. This will continue to change as more cases are presented to states as they adopt more policies that enable employees to remain employed without discrimination. Agronomed will continue to keep you updated as new cases arise and judgments are made.

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