from using marijuana altogether, including when the employee is off the clock.
So, how is this conflict reconciled? Do
medical marijuana laws prevent an employer from making and enforcing zero-tolerance policies against marijuana use
(including for medicinal purposes)? The
answer is: It depends.
Employers should be aware that certain states, such as Arizona, Delaware,
Minnesota and Nevada (Az. Rev. Stat.
36-2813; Del. Code Title 16, § 4905A;
2013 Minnesota Senate File No. 2470),
expressly prohibit employers from firing
an employee for a positive marijuana test
that results from off-duty marijuana use
for medicinal purposes if the employee
has otherwise complied with state law.
According to Nev. Rev. Stat. §
453A.800, “the employer 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.” Yet,
other jurisdictions do not have these so-called anti-discrimination provisions in
their medical marijuana statutes and thus
resolve this issue differently.
Courts in some states have held that em-
ployers can enforce zero-tolerance drug
policies even if medical marijuana is legal.
These courts have reasoned that medical
marijuana laws are merely decriminaliza-
tion statutes, which do not provide em-
ployees with any tangible rights. In Ross
v. RagingWire Telecommunications, Inc.,
the court found that the plaintiff could
not state cause of action under California
medical marijuana law because the state
law did not change that medical mari-
juana was illegal under federal law and
did not provide cause of action against
employers implementing zero-tolerance
policy. [See also Roe v. Tele Tech Customer
Care Mgmt. (Colorado) LLC, 2011, and
Savage v. Maine Pretrial Servs., Inc., 2013]
The Colorado Supreme Court just up-
held the lower court decisions in Coats v.
Dish Network, LLC, a case in which the
employer terminated a quadriplegic who
used medical marijuana pursuant to a pre-
scription for debilitating muscle spasms.
The employer terminated the employee
for testing positive for marijuana even
though he was never under the influence
The employee sued for wrongful termi-
nation under Colorado’s “Lawful Activi-
ties” law (COLA), which prohibits termi-
nation for off-the-clock behavior that is
legal. The Colorado trial court dismissed
the claim, holding that the termination
was lawful, and the Court of Appeals af-
firmed. The Colorado Court of Appeals
explained in affirming the trial court’s
dismissal of the claim that the employee’s
marijuana use was not a “lawful activity”
under COLA since marijuana use re-
mains unlawful under federal law.
Employers must engage their legal advisors to keep them informed of the legal
landscape in each state in which the employer conducts business. Presently, there
is no uniform approach to determining
whether an employer can prohibit employees from using medical marijuana.
2. How do state medical
marijuana laws affect
companies that work with the
The Drug Free Workplace Act (DFWA)
requires some federal contractors and all
federal grantees to enforce zero-tolerance
work policies that prohibit the use of illegal drugs in the workplace. As a consequence, private businesses that fall under
the DFWA’s definition of federal contractor or grantee frequently ask: What about
A few state statutes legalizing marijuana for medicinal purposes have recognized the conflict between federal laws,
like the DFWA, and state medical marijuana laws. These state statutes provide an
exemption that excludes the authorization of marijuana use for medicinal purposes if federal laws prevent it. Az. Rev.
Stat. [36-2813 (2011)] says that “unless
failure to do so would cause an employer
to lose a monetary or licensing related
benefit under federal law or regulations,
an employer may not discriminate” based
on a qualified patient’s testing positive for
The DFWA does not specifically regulate off-duty drug use, however. Nor does
the DFWA require drug testing by companies that qualify as a federal contractor
Thus, plaintiffs’ lawyers representing
employees will highlight and argue that
any exclusion for federal law purposes does
not apply to off-the-clock activities. In the
end, the determination of this issue will
likely be raised in the highest court (pun
intended) and will involve complex federal
preemption arguments and analysis.
In the interim, employers who fall
under the purview of the DFWA should
make sure their policies expressly prohibit drugs in the workplace, and they
should know whether they are in a state
that would allow for a zero-tolerance policy. These employers should also consider
obtaining guidance from the Department
of Labor or other agencies.
3. Are employers required to
accommodate an employee’s
use of medical marijuana if used
to treat a disability?
The Americans with Disabilities Act
(ADA) prohibits discrimination against
employees with disabilities, i.e., physical
or mental impairments that substantially
limit major life activities. [See 42 U.S.C.
§ 12102] Employees who legally use prescribed drugs to treat a disability are
generally protected under the ADA. The
protections afforded under the ADA generally impose a legal duty on employers to
accommodate the employee’s drug use, including potential side effects. If, for example, an employee takes medication to treat
a disability, and that medication causes the
employee to become drowsy, the employer
may have to accommodate the employee’s
medication schedule by conforming the
employee’s work schedule.
Naturally, the employer becomes concerned about an employee “lighting up a
joint” at work because it is an ADA-pro-tected activity. But, employers can relax
here. The ADA explicitly excludes from
protection employees who use illegal
drugs. [See 42 U.S.C. § 12114] Notably, an
employee’s marijuana use need not occur
on the same day or immediately before
to justify an adverse employment action.
Courts generally hold that “an individual