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Marijuana and the workplace

ritchie_benIn November’s highly contested election, legalizing marijuana was one of the only issues that many Americans were able to agree on.  California, Nevada, Arizona, and Massachusetts all had ballot measures legalizing recreational marijuana in certain amounts.  Only the measure in Arizona failed to pass.  Currently, eight states, including Idaho’s neighbors Washington, Oregon, Nevada, and Colorado, have legalized recreational marijuana.  Twenty-nine states allow for the use of medical marijuana.

workforce-blurb-column-april-14How might these measures in other states affect Idaho workplaces?  At the outset, it must be emphasized that marijuana is illegal in Idaho.  Idaho has not passed any law legalizing medical or recreational marijuana.  Even if an individual legally purchases marijuana in another state, he/she cannot bring it into Idaho.

Also, under federal law, it is illegal to possess, use, buy, sell, or cultivate marijuana pursuant to the Controlled Substances Act of 1970.  For the most part, the Obama administration did not enforce the Controlled Substances Act for marijuana in those states that had laws making it legal.

On February 23, White House Press Secretary Sean Spicer suggested that the Trump administration will step up the enforcement of federal laws against recreational marijuana, but not medical marijuana.  Attorney General Jeff Sessions was vague in his confirmation hearings in January about how he would handle the enforcement of the Controlled Substances Act with respect to recreational marijuana.  He said “[u]sing good judgment about how to handle these cases will be a responsibility of mine.”  There is no indication from the Trump administration that it will seek to change the Controlled Substances Act.

How do these measures in other states affect federal employment laws like the FMLA and ADA for Idaho employers?  The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave, including intermittent leave, for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.  It is unlikely that the FMLA would provide any protection for the use of medical or recreational marijuana use because it is still illegal under federal law.

The ADA makes it unlawful to discriminate in employment practices against a qualified individual with a disability.  However, the ADA specifically states that “qualified individual with a disability shall not include any employee or applicant who is currently engaging in the use of illegal drugs when the covered entity acts on the basis of such use…”

There is no protection for illegal drug use under the ADA, but, an employer cannot take adverse employment action against an employee who 1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs; 2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or 3) is erroneously regarded as engaging in illegal drug use, but is not.

Courts around the country have grappled with the issue of the accommodation of the use of medical marijuana and the ADA in those states where medical marijuana is legal.  They have uniformly found that there is no protection for the use of medical marijuana under the ADA because it is still illegal under federal law.  In states where medical marijuana is legal, state courts have also refused to require employers to modify their drug-free policies to allow for the use of medical marijuana.

So, under the current legal landscape, Idaho employers are not required to accommodate the use of marijuana in any form.  Even if an employer based in Idaho has employees or offices in other states where medical or recreational marijuana is legal, unless the current status of the law changes, the employer is entitled to maintain a drug-free policy and can terminate an employee for testing positive.

One of the most important tools for enforcing a drug-free workplace is to have a drug testing policy.  A study from Washington state published in 2004 in Health Services Research, showed that for three industry groups (construction, manufacturing and services), injury rates declined significantly following the implementation of drug testing.  It is important to apply the drug testing program uniformly and consistently for all employees.  Employers also need to make sure that their drug testing program is job-related and consistent with a business necessity.

The Idaho Employer Alcohol and Drug-Free Workplace Act sets up voluntary guidelines that permit alcohol and drug testing of job applicants and employees as a condition of hiring or continued employment.  The law also enables an employer to classify a drug- or alcohol-related termination as work-related misconduct that can disqualify an employee from eligibility for unemployment compensation benefits.

So, for Idaho employers, the laws of surrounding states have no effect on the legality of the use of medical or recreational marijuana.  Employers can still maintain a drug-free workplace policy, and there is no requirement at this time to accommodate under the FMLA or ADA for the use of medical marijuana.
Benjamin C. Ritchie is a partner in the Idaho Falls office of the law firm Moffatt Thomas. He represents clients in commercial transactions, insurance defense litigation, workers’ compensation, employment, construction and transportation.

About Benjamin R. Ritchie