Marijuana in the Workplace

The legal landscape surrounding marijuana in the
workplace is dynamic and changing quickly. Employers must navigate both the
federal and state statues and new court decisions when developing
substance-abuse policies and drug testing practices around cannabis.


The United States
law treats two different species of cannabis; marijuana and hemp, very
differently. The federal Controlled Substances Act (CSA) has labeled marijuana a
Schedule I narcotic, and it has high potential for abuse and no accepted
medical use. The CSA prevents the production, distribution, and use of
marijuana.  In contrast to federal law, 33 states and Washington DC allow
for medical marijuana purposes, and 10 states permit full recreational use, and
an increasing number of states are allowing medical use of CBD with THC levels below
.3 percent for medical use.

Marijuana in the Workplace

In previous jurisdictions employers that have fired or
refused to hire medical marijuana patients have been sued for discrimination
under the appropriate state laws. Employers often argue that federal laws
prohibit medical marijuana use, therefore, state law can’t protect employees.
Some courts agree with this, some do not. In one of the first cases surrounding
this issue, the Oregon Supreme Court found that the employee was unlawfully
discriminated against for using medical marijuana in accordance with the Oregon
Medical Marijuana Act. The employer challenged the Oregon Bureau of Labor and
Industries’, the court then implied that a conflict between federal and state
laws exists “when it is physically impossible to comply with both state
and federal law” or when the state law works as a barrier to the
achievement and execution of the federal law.  In the end, they concluded
that since the state law authorizes medical marijuana use and the CSA prohibits
it, that the Oregon law served as an obstacle to CSA enforcement. Therefore,
the court ruled that the CSA pre-empted state law. Several other decisions likewise
have found that the CSA pre-empts state law and therefore employers do not need
to permit medical marijuana use.

In 2016, the U.S. District Court for the District of New
Mexico similarly ruled in Garcia v. Tractor Supply Co. that the
state’s medical marijuana law did not require an employer to accommodate an
employee’s use of medical marijuana.

Is Change Afoot?

Recent court opinions suggest a change in direction on
the pre-emption issue. In 2017, Noffsinger V. SSC Niantic Operating Co. LLC,
the court ruled that employers cannot claim federal pre-emption to avoid
discrimination lawsuits brought by employees who use medical marijuana. The
employee working for Noffsinger had post-traumatic stress disorder, which
protects her under Connecticut’s Palliative Use of Marijuana Act (PUMA).  

PUMA prohibits
employers from discriminating against qualifying patients. The employee received a conditional job offer
requiring her to pass a drug screening. She told the employer she could not
pass the test because she used medical marijuana supplements at night. She said
it would not affect her performance during the day.

The employer nevertheless rescinded the offer, and the
employee filed suit alleging a violation of PUMA. The employer argued that
federal laws, including the CSA, pre-empted PUMA’s discrimination protections.

The court ultimately held that the CSA does not speak to
the issue of employing marijuana users, so the CSA could not be viewed as
intending to pre-empt state laws like PUMA, which explicitly protect medical
marijuana users from employment discrimination.

Tips for Employers

Zero-tolerance drug policy’s need to be given a second
thought. Employers may no longer be able to prohibit cannabis use across the
board simply because it is illegal under the CSA.

Navigating between state laws and federal laws can be
difficult, Converge HR Solutions has trained HR professionals that help establish
policies and procedures for your employees to follow. You can call us at
610-296-8550 or email us at for assistance.

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