Question of the Month

September 2017

Question
What is the status of medical marijuana and the workplace in your area?
Answer from Alabama

It is not recognized in Alabama.

For more information please contact David Middlebrooks at dmiddlebrooks@lehrmiddlebrooks.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from California

California employers may conduct drug tests in limited circumstances. Employers are not under any duty to accommodate an employee by authorizing the use of medical marijuana.

For more information please contact Erin Winters at ewinters@fosteremploymentlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Florida

It is not legal in Florida, although there have been attempts to enact such a law which have not yet been successful.

For more information please contact Wayne Helsby at WHelsby@anblaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Hawaii

Hawaii recently passed a non-discrimination law based on use of medical marijuana, but employers were not included among the groups by whom discrimination is prohibited.  Several years earlier, Hawaii had passed a law that decriminalized the medical use of marijuana under certain circumstances, and that law specifically stated that it did not permit employees to use marijuana at work even for medical reasons (although it was silent about being under the influence of medical marijuana at work).

Based on the current state of the law, it is likely that employers are still free to prohibit employees from being under the influence of marijuana at work, even when the marijuana is used for medical purposes in accordance with Hawaii law, but the issue has not yet been tested in court or in a published ruling or guidance from the HCRC.

For more information please contact Sarah Wang at SWang@marrjones.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Maryland

The sale and use of medical marijuana is permitted by law, but the state licensing of growers, processors and dispensaries has not yet commenced, and thus no sales may yet be made. The state is predicting that the sale of medical marijuana will begin in 2017. In any case, Maryland law does not require employers to accommodate the use of medical marijuana in the workplace.

For more information please contact Fiona Ong at fwo@shawe.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Massachusetts

Medical Marijuana was legalized in Massachusetts in 2012.  The Massachusetts Act for the Humanitarian Medical Use of Marijuana (“the Act”) does not require employers to accommodate on-site marijuana use, but the statute and its implementing regulations are otherwise silent as to whether employers must alter their workplace policies relating to pre-employment drug testing, provide other accommodations to employees who legally use marijuana under the Act, or make other changes based on the new law.  In the only case interpreting the Act, the Massachusetts Superior Court (trial court) dismissed plaintiff’s three counts of state-law disability discrimination, one count of violating the Act itself, and a wrongful termination in violation of public policy claim.  The court allowed an invasion of privacy claim to proceed.  An appeal is currently pending.

Massachusetts voters legalized recreational marijuana in November 2016.  Effective December 15, 2016, the possession, growth, and consumption of limited amounts of marijuana for recreational purposes became legal.  Legal sales of recreational marijuana were delayed until July 1, 2018, pending further legislative alterations to the Act.

For more information please contact Marylou Fabbo at mfabbo@skoler-abbott.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Michigan

Michigan has passed a medical marijuana statute, after a statewide referendum.  However, the statute provides that nothing in the act shall be construed to require an employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.  MCLS § 333.26427
 
In Casias v. Wal-Mart Stores, Inc., 764 F. Supp. 2d 914 (W.D. Mich. 2011), the court held that the Michigan Medical Marihuana Act (MMMA) did not provide for either an express or implied cause of action for a medical marijuana user terminated for a positive drug test, although the statute provides: “a qualifying patient …shall not be …denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act . . .”  Casias also held that termination for the use of medical marijuana does not violate public policy.
 
However, Braska v. Challenge Mfg. Co., 307 Mich. App. 340 (2014) held that the prohibition of any “civil penalty” language meant that an employee’s positive test results because of use of medical marijuana does not disqualify the employee for unemployment benefits, as long as the employee did not use the drug at work or work while under the influence. 

For more information please contact Bill Pilchak at wpilchak@mi-worklaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Minnesota

The Minnesota Medical Marijuana Act, Minn. Stat. § 155.22-27, protects qualified medical marijuana patients from employment discrimination.  Minn. Stat. § 155.32 Subd. 3 provides:
 

(c) Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:
 
(1) the person's status as a patient enrolled in the registry program under sections 152.22 to 152.37; or

(2) a patient's positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.

For more information please contact Doug Seaton at dseaton@seatonlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Missouri

In Missouri such use is not allowed in the workplace.

For more information please contact Stephen Maule at maule@mcmahonberger.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Nevada

Under NRS 453A.800, a Nevada employer is not required to allow the medical use of marijuana in the workplace.  Further, Nevada law does not require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer.  However, employers must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:  (a) pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or (b) prohibit the employee from fulfilling any and all of his or her job responsibilities.

For more information please contact Scott Abbott at SAbbott@kzalaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from New York

Medical Marijuana is legal in New York State under the Compassionate Care Act (the “CCA”).  The CCA contains a “non-discrimination” provision, which states that a certified medical marijuana patient shall be deemed disabled under the New York State Human Rights Law.  As such, individuals using medical marijuana are protected from discrimination on the basis of the individual’s status as a certified medical marijuana patient. The CCA does, however, allow employers to enforce workplace policies prohibiting employees from performing their duties while impaired by a controlled substance.

For more information please contact John Keil at jkeil@cfk-law.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from North Carolina

Marijuana is illegal in North Carolina. There is no legal medical marijuana in this state.

For more information please contact Bryan Adams at bryan.adams@vradlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Pennsylvania

Pennsylvania Governor Tom Wolfe signed the Medical Marijuana Act (“Act”) into effect on April 17, 2016, legalizing medical marijuana in the Commonwealth.  The Act allows for medical marijuana to be dispensed in the following forms: a pill; oil; topical treatment; a form medically appropriate for administration by vaporization or nebulization (excluding dry leaf or plant form until such is deemed acceptable under state regulations); tincture; or liquid. The bill specifically provides that it is unlawful to smoke marijuana, and to incorporate marijuana into an edible form in a manner other than those identified in the Bill.

Section 2103 of the Act does contain a significant anti-discrimination provision:  “No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”  However, Section 2103 also contains provisions that indicate that an employer is not required to accommodate the use of medical marijuana in the workplace:

•    “Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment.  This Act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.”

•    “Nothing in this Act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.”

The Act also contains a number of employment-related restrictions that apply to individuals working in safety-sensitive positions.  Section 510 of the Act sets forth the following prohibitions:

•    With a blood content of more than 10 nanograms of active tetrahydrocannabis per millimeter of blood in serum, a patient may not operate or be in physical control of (1) chemicals which require a permit issued by federal or state government (or federal or state administrative agency, or (2) high voltage electricity or any other public utility.

•    A patient under the influence of medical marijuana may not perform any employment duties at heights or in confined spaces, including but not limited to mining.

•    An employer may prohibit a patient under the influence of marijuana from performing any task which the employer deems life-threatening, for either the patient or other employees.  The Bill provides that the “prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.”

•    An employer may prohibit a patient under the influence of marijuana from performing any duty which could result in a public health or safety risk.  The Bill provides that the “prohibition shall not be deemed an adverse employment decision even if the prohibition results in financial harm for the patient.”

The Department of Health’s implementation of the Act is expected to take between 18 and 24 months.  Once the Department of Health publishes its final regulations, employers will be in a better position to make policy decisions regarding medical marijuana use in the state. 

For more information please contact John Ellis at jellis@ufberglaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Virginia

Virginia’s medical marijuana is extremely narrow.  In 2015, the Virginia General Assembly legalized the possession of two marijuana-based oils, but only for intractable epilepsy patients and their caregivers.  In 2016, the General Assembly passed a supplemental bill to allow these oils to be produced and distributed in Virginia.  No provision in the bill provides any protections for prospective or current employees that use these oils.  Thus, employers have a right to discharge an employee who is found to have used marijuana in any form, including this narrow class of marijuana-based oils.  Some employers have expressed concern that an employee’s use of these oils could give the employee standing to sue for wrongful termination in violation of Virginia public policy, or under the Americans with Disabilities Act,  but neither of these theories has been tested yet in a Virginia court.

For more information please contact Susan Carnell at scarnell@lorengercarnell.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Washington

In Washington, medical marijuana users are not protected from negative hiring or disciplinary decisions based on an employer’s drug testing policy.   Roe v. Teletech Customer Care Management, 171 Wash. 2d 736  (2011).   See, also, Swaw v. Safeway, Inc., 2015 WL 7431106 C15-939 (W.D. Wash. Nov. 20, 2015)  (holding employer may lawfully terminate employee for using medical marijuana even when employee had prescription and used it off-duty as Washington law imposes no duty on employers to accommodate medical marijuana in drug-free workplaces).

For more information please contact Ken Diamond at ken@winterbauerdiamond.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Wisconsin

With very limited exceptions which allow for the use of high-CBD, low-THC cannabis oil for patients with severe seizure disorders, medical marijuana is not legal in Wisconsin.   See Wis. Stat. § 961.41

For more information please contact Laurie Petersen at LPetersen@lindner-marsack.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

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