Medical Marijuana - Caught Between State and Federal Law: What Is An Employer To Do?

However, the Federal Controlled Substances Act prohibits the unauthorized manufacture, distribution, dispensation, and possession of marijuana, even where state law authorizes its use to treat medical conditions. Last October, U. S. Attorney General Eric Holder instructed U.S. attorneys not to prosecute people authorized to use marijuana under state law, but such use remains a violation of federal law.

Because Maine and federal discrimination laws do not protect illegal drug users, it is unclear whether or not a Maine employer is required to accommodate use of marijuana for medical purposes.  And questions arise on how this new Maine law affects employers who test their employees for drugs such as marijuana under a policy approved by the Maine Department of Labor. The issue is even more complicated if the employer has a federal contract, or it is required under federal law to drug test employees.

Employers may not wish to be caught in the middle, so to speak, in this conflict between state and federal law. This Alert is intended to guide employers to prepare now on how to respond before these potential conflicts impact their workplaces.

How does the Maine’s Medical Marijuana Law Impact Employers?

The Maine Medical Marijuana law provides that a “qualifying patient” that possesses a registry identification card may not be subject to arrest, prosecution or penalty for the medical use of medical marijuana.  The law also provides that the “qualifying patient” may not be denied any right or privilege, and is specifically protected against disciplinary action by a business for the medical use of marijuana.  In addition, the new law states that an employer may not refuse to employ or otherwise penalize a person solely for that person's status as a registered qualifying patient [or a registered primary caregiver] unless failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding. 

Thus, the new law would likely prohibit an employer from discriminating against an employee for medical marijuana use outside of work.  While the new law does not require an employer to accommodate the use of marijuana at work or to allow an employee to work while under the influence of marijuana, it can be a formidable task for an employer to prove use or impairment in the workplace.^[1]  Furthermore, although an employer could take disciplinary action if the use of medical marijuana would cause the employer to violate federal law or result in the loss of a federal contract, an employer is not necessarily in violation of federal law by knowingly employing or retaining an employee that is using medical marijuana. 

Finally, it is unclear whether or not the termination of an employee for using medical marijuana would violate the Maine Human Rights Act (“MHRA”).  The MHRA (as under the Americans with Disabilities Act) does not protect current illegal drug users, with certain exceptions^[2].  The use of medical marijuana would not be “illegal” under Maine law, but would be a violation of the federal Controlled Substances Act.  At least one court as addressed this conflict and held that a state medical marijuana law was preempted by federal law. 

On April 14, 2010, the Oregon Supreme Court ruled in Emerald Steel Fabricators v. Bureau of Labor & Industry that an employer may discharge an employee for medical marijuana use, despite his participation in a medical marijuana program approved by Oregon’s medical marijuana law.  When Emerald Steel hired a temporary employee as a drill press operator, he was told that after 90 days he would have to take a drug test to be considered for a permanent job.  The company then learned that he was participating in Oregon’s medical marijuana program, and that he smoked marijuana one to three times a day, depending on his symptoms.  The employee claimed that he never smoked it at work.

The Oregon Supreme Court, reversing lower court rulings that his discharge was discriminatory, held that the employer could not be forced to accommodate the use of marijuana, because Oregon’s employment discrimination laws do not protect the illegal use of drugs. In reaching that decision, the Oregon court held that the State law authorizing the use of medical marijuana was preempted by the federal Controlled Substances Act.  Because the use of medical marijuana was illegal under federal law, the Court found that the state law authorizing the use of medical marijuana was not enforceable.  

Although this one case is helpful, it is not binding on a Maine court.  Thus, a Maine employer should no longer refuse to employ or otherwise penalize a registered medical marijuana user, unless that employer is willing to test the federal preemption issue in court.

What About Federal Contractors?

As noted above, a Maine employer can refuse to hire or can terminate an employee for using medical marijuana if the use would violate federal law or result in the loss of a federal contract.  The Drug-Free Workplace Act of 1988 (“the federal DFWA”) requires some Federal contractors and all Federal grantees to agree that they will provide a drug-free workplace as a precondition to receiving a contract or grant from a federal agency.  Coverage under this federal law should be determined case by case.  Covered employers must take comprehensive, programmatic steps to achieve a workplace free of drugs. 

Under the federal DFWA and U.S. Department of Labor guidelines, covered employers must adopt a policy which provides, among other things, that use of illegal drugs such as marijuana is a violation, and calls for either discharge, or, at the employer’s option, progressive discipline with rehabilitation.  However, the DFWA also provides that a covered employer is not subject to loss of its federal contract or grant unless it fails to take such actions after it is notified of an employee conviction for possession, use, manufacture, etc. of an illegal drug in the workplace.  Absent an employee’s conviction for use of marijuana in the workplace (and it appears that there will be no state or federal prosecutions, let alone convictions, for medical marijuana use outside the workplace), it remains unclear whether an employer may or may not (or must) take disciplinary action or require rehabilitation for medical marijuana users.

What About Drug Testing?

Another wrinkle is how the new law will effect employer drug testing.  Employers that drug test pursuant to policies approved by the Maine Department of Labor generally screen for the use of marijuana.  Employers should revisit their policies and consider carefully how to handle drug testing given this new law. 

Some employers are also subject to mandatory drug-testing under federal law (e.g., the DOT mandates drug testing for covered interstate drivers and other federal agencies mandate drug testing by owners of nuclear power plants, gas or oil pipelines, airlines, railroads, etc.).  These employers must test certain employees for drugs, including marijuana.  In most cases, the federal mandatory drug-testing rules do not require discharge as a result of a positive drug test; rather, the worker must be taken out of service and offered rehabilitation.  Thus, an employee that tests positive for medical marijuana use would not be qualified to continue to drive under DOT rules, or pilot an airplane, etc., but the employee could still be protected against discharge under the Maine Medical Marijuana law.

Recommendations:

1. Employers with Maine-approved drug testing policies should consider amending their policies to exclude medical marijuana as defined under Maine law.   It seems obvious that someone on prescribed marijuana for medical treatment should not be forced into rehabilitation to stop taking that which is being prescribed.
2. Unless employers wish to risk being a test case under the Maine Medical Marijuana law, they should consider changes to their policies to permit out of work use of medical marijuana. Those employers with safety-sensitive positions should treat medical marijuana use in the same fashion they would any other medication that could impair an employee’s ability to work.  Employers may want to require employees who are registered for medical marijuana use to notify the company, so that an individual assessment can be made on how to accommodate such use without creating an unreasonable safety risk to the employee and other coworkers.  Such an assessment may require medical advice, and the employee’s carefully limited consent to allow access to the employee’s own treatment providers.   
     
3. Determine whether your organization is a covered federal contractor under the federal Drug-Free Workplace Act and, if so, seek clarification from your contracting agency to determine whether or not you are required to discipline and/or offer rehabilitation to a marijuana user who has not been convicted for use in the workplace and who refuses rehabilitation because of medical use permitted and protected under the Maine Medical Marijuana law. 
   
4. If an employee tests positive for medical marijuana use as a result of a drug test mandated by federal law (i.e. DOT regulated drivers), aside from removal from service, consider accommodation, such as medical leave or offering another position, in lieu of forcing rehabilitation or discharging the employee.