Wellness Programs: Is Financial-Use Marijuana A Thing?

By Michael G. McClory - Bullard Law

September 24, 2018

Today’s (fictional) mailbag letter comes from Jay Blunt, the owner of a local publishing company.  Jay asks us to help him evaluate an employee’s request that he be permitted to use marijuana (CBD specifically) without penalty under the drug and alcohol policy so that he can quit tobacco and qualify for the financial benefit in the company’s wellness program.  This is a first for The Bullard Edge.  We have fielded questions regarding medical marijuana and regarding recreational use issues.  However, we cannot recall ever being asked to talk about accommodating the financial use of marijuana.  Jay wants to know what he should do.  Here is Jay’s letter and our response.

Jay’s Question:
Hey Bullard Edge, I have a question for you about an employee named Hiram.  Everyone calls him Hi, which is ironic as you shall soon see.  Before I spill the question, I need to give you the 411 on the sitch.
 
I own the popular local publishing company Slang Warehouse.  Our mission is to chronicle all things slang in the “Tri-Burg area” (a slang term, natch, that refers to the combined Mid-Town, Eastside, and Westburgh communities.)  Think of us like the folks who publish the Chicken Soup books.  We churn out slang guides for targeted audiences.  Some of our more popular titles are Slang for Grandparents, Weekend Slang for Dads, and Slang for Beginners (perfect for lawyers, I think).
 
The Warehouse workforce falls generally into three groups: a knowledge team (interviewers, researchers and writers) that generates the guides, a revenue team (marketing and sales), and a business team (accounts payable, accounts receivable, etc.), which is where Hiram works.
 
Hiram, like many of our employees, smokes.  I lost a brother to lung cancer and am committed to ridding the world of this scourge, starting with my business.  A year ago we adopted a wellness program (blessed by counsel, so relax), which, among other things, creates a financial incentive for employees to stop using tobacco (over $2500 in some cases).
 
Yesterday Hiram walked into my office.  We have a history.  Hiram is a good dude and has been outstanding during his nine years as an employee.  He knows I am a tobacco warrior and I know that he has tried, unsuccessfully but sincerely, to kick the habit.  Nothing has worked for him (hypnotism failed, going cold turkey flopped, patches didn’t stick).
 
I could tell Hiram was excited about something even before he spoke and then he just blurted out some information and a request.  His doctor just suggested a new and “promising” approach to beating tobacco ~ using pot.  Hiram had a pamphlet from “Merry Jane” (industry publication, yeah) and an article that explained the theory.
 
“Cannabidiol (CBD), a non‐intoxicating cannabinoid found in cannabis, may be a promising novel smoking cessation treatment due to its anxiolytic properties, minimal side effects and research showing that it may modify drug cue salience.”
 
Skunk-weed.  Grass.  Whatever slang term you want to use for it, pot is pot and the Slang Warehouse drug and alcohol policy strictly prohibits employees from using marijuana or being under its influence at work.  Hiram asked me to make an exception for him.  He said that he really wants to quit tobacco for his health and because of the financial incentive in the wellness program.  He offered to get a medical marijuana card if that is the issue.
 
I am torn.  I want Hiram to stop using tobacco, but I do not want to throw out the marijuana prohibition in the drug and alcohol policy (and I really don’t want to start calling him “High”ram).  That brings me to the question: What do I do?  Please help.
 
The Bullard Edge's Response:
We understand your dilemma, Jay.  Hiram is a friend and a good employee.  He has a tobacco problem, which is your personal cause, and wants to address it.  Unfortunately, the method of attack may result in a violation of the company’s drug and alcohol policy (but see the fifth and seventh points below).  That puts you between a rock and a hard place.  We will help you focus on some of the issues that we believe are relevant.  In doing this, we remind you that The Bullard Edge does not give legal advice (call your favorite employment lawyers for that).
 
First, we agree with you.  Tobacco is nasty business.  It is addictive and medically dangerous and difficult to quit.  We applaud your desire to help employees stop using.
 
Second, we are glad to hear that you worked with counsel when creating the Slang Warehouse wellness program.  As explained by EEOC, "wellness programs" is a term that refers to health promotion and disease prevention programs and activities that employers offer to employees as part of an employer-sponsored group health plan or separately as a benefit of employment.  Wellness programs may be educational in nature and they may include financial incentives, including incentives intended to encourage employees to stop smoking. It is a good idea to work with your benefits attorney when adopting a wellness program, which you have done.  We will assume that the Slang Warehouse wellness program complies with applicable law.
 
Third, The Bullard Edge has no idea whether there is any validity to the suggestion that using cannabidiol, which is found in cannabis, is a potentially effective method for kicking the tobacco habit.  The materials that Hiram gave you refer to a recent study published in Addiction, which is the official journal of the Society for the Study of Addiction.  See “Cannabidiol reverses attentional bias to cigarette cues in a human experimental model of tobacco withdrawal” (May 1, 2018).  We will leave it for you to read the study.
 
Fourth, as you know a majority of states now have laws that legalize marijuana on the state level; these laws are a mix of medical marijuana and personal use laws.  Both Oregon and Washington have legalized medical and personal use marijuana.  Despite these laws, employers in most of these states are not (yet) directly impacted by these laws.  Specifically, employers may continue to adopt drug policies that prohibit marijuana and are not required to modify those policies as a form of reasonable accommodation of disability.
 
CAUTION: The legal tide may be changing.  Earlier this month a federal court in Connecticut granted summary judgment to a plaintiff who was a duly-authorized medical marijuana user and who had a job offer rescinded following a pre-employment drug test that was positive for marijuana.  See Noffsinger v. SSC Niantic Operating, No. 3:16-cv-01983 (D Conn, Sept 5, 2018).
 
Fifth, you say that whatever slang term you use for it, pot is pot.  That may be oversimplifying things.  Even though the CBD that Hiram likely would use is technically illegal, there is an academic argument for some CBD to be legal under federal law.  Without trying to be a Poindexter, we will provide an abbreviated science lesson.

• The legal definition for “marijuana” is found in the Controlled Substances Act (CSA).
• Per the definition, the marijuana that is illegal includes “all parts of the plant Cannabis sativa L.” except those specifically excluded.
• While the US Drug Enforcement Agency acknowledges the theoretical possibility that CBD may be derived from the legal parts of the cannabis plant, this is in fact unlikely because only “trace amounts (typically, only parts per million)” are may be found in the “small quantities of resin” that “adhere to the surface of seeds and mature stalk,” which are legal.
• While the US Drug Enforcement Agency acknowledges the theoretical possibility that CBD may be derived from the legal parts of the cannabis plant, this is in fact unlikely because only “trace amounts (typically, only parts per million)” are may be found in the “small quantities of resin” that “adhere to the surface of seeds and mature stalk,” which are legal.
• CBD manufacturers commonly claim that their CBD products are derived from the legal parts of the plant and therefore are legal under federal law.
• The DEA, though, says this claim is unlikely to be true because “it is not practical to produce extracts that contain more than trace amounts of cannabinoids using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana, such as oil from the seeds. The industrial processes used to clean cannabis seeds and produce seed oil would likely further diminish any trace amounts of cannabinoids that end up in the finished product.”

Sixth, the Slang Warehouse drug policy with respect to marijuana sounds like it is fairly strong.  You said that it prohibits employees from using or being under the influence of marijuana in the workplace.  Both the ADA and Oregon disability discrimination law require an employer to reasonably accommodate an employee’s disability (where an accommodation is reasonable, available and needed, and where providing it would not be an undue hardship or create a direct threat of harm); however, there is no requirement to accommodate a disabled employee by excusing him or her from the requirement to comply with the marijuana prohibition in the employer’s drug and alcohol policy.
 
Applying this to Hiram, we have two observations.

• On the one hand, even if he were to obtain an Oregon medical marijuana card, current Oregon law would not require Slang Warehouse to accommodate his use of marijuana.
• On the other hand, CBD is different from the marijuana that folks use to get high because it typically does not contain much THC.  According to US Drug Test Centers, “If the product contains only CBD and has had the THC removed, then an individual being tested would not be expected to test positive for marijuana or marijuana metabolite” in a typical drug screening.  Thus, it is very possible that if Hiram had simply begun using CBD and said nothing about it to you, the Warehouse would have never known about it.

Seventh, we not aware of any viable legal claim that Hiram might have in the event that you decide not to excuse him from the drug and alcohol policy.  In other words, there is nothing that requires accommodation of the financial use of marijuana.  That being said, if you were to send Hiram for testing using his CBD inquiry as reasonable suspicion, it is possible that he would not test positive under your policy.  We have not seen your policy and do not know what THC cutoff level is used; as noted above, though, CBD use may not be detected in a standard drug screen.
 
Lastly, we note that employers with drug and alcohol policies that prohibit marijuana are facing an increasingly complex set of considerations.  They are concerned about not being able to fill positions; legalization has increased the number of folks who are using marijuana (including the number of folks in the workforce who are using).  If you decide that you want to excuse Hiram from the policy so that he can attempt to kick the tobacco habit, you may be opening the door to other employees seeking that same treatment as a form of reasonable accommodation for disability.  Your best course of action may be to confer with your counsel and to be prepared to discuss the goals of the Slang Warehouse drug and alcohol policy:

• what you are prohibiting,
• why you are prohibiting it,
• the effectiveness of the prohibition on the goal, and
• any adverse consequences of the prohibition.

We absolutely hope this helps you to sort through these complex issues.  Good luck.  If you have follow-up or other questions, please feel free to email us.
 
Best regards,
The Bullard Edge