Employees' Use of Medical Marijuana

Background:

Employers increasingly are being confronted with the question of how to deal with employees who use medical marijuana, in states where its use has been legalized by the state legislature.

Jurisdictions with Medical Marijuana Statutes:

Fifteen states (Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington), as well as the District of Columbia, have statutes allowing for the use of medically prescribed marijuana, or allowing for possession of small amounts of marijuana.  

For details about the laws in these 16 jurisdictions, as well as links to the underlying legislation for each jurisdiction, see ProCon.org, 15 Legal Medical Marijuana States and DC: Laws, Fees, and Possession Limits, http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881 (last updated on Jan. 27, 2011).

Employment Cases Involving Medical Marijuana:

Where employers terminate employees for use or possession of medically prescribed marijuana, in states where such possession or use has been legalized by the state legislature, the terminated employees have in some cases brought disability discrimination claims against the employer.  So far, courts appear to be trending towards ruling in favor of the employer in such cases.  See, e.g.:

Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Ore. 159 (2010). The Supreme Court of Oregon held that despite Oregon’s medical marijuana statute’s silence on the issue of employment discrimination, an employer was not required to accommodate an employee's use of medical marijuana.

Ross v. Ragingwire Telecommunications, Inc., 42 Cal. 4th 920 (2008). The Supreme Court of California held that employers were not obligated to accommodate the use of prescribed marijuana, that drug testing was legal, and that terminating an employee for marijuana use was not discrimination.

Ethical Implications of Advising Clients Regarding State Medical Marijuana Laws:

On July 7, 2010, the Board of Overseers of the Bar of the state of Maine issued an ethics opinion (Opinion # 199) on advising clients concerning Maine’s Medical Marijuana Act.  The issue presented in the opinion involves “the role which Maine attorneys may ethically play because of the interplay of Maine’s new law with the Federal prohibition against the distribution of marijuana.” 

The opinion examined M. R. Prof. Conduct 1.2(e), which states:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of the proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Based on that rule, the Board concluded that “[w]hile attorneys may counsel or assist a client in making good faith efforts to determine the validity, scope, meaning, or application of the law, the Rule forbids attorneys from counseling a client to engage in the business [of violating the federal prohibition against marijuana distribution] or to assist a client in doing so.”

The full opinion can be found at http://www.maine.gov/tools/whatsnew/index.php?topic=mebar_overseers_ethics_opinions&id=110134&v=article.

Articles:

For articles on the topic of medical marijuana in the workplace, see:

Anna M. Dailey and Jeffrey A. Foster, Medical Marijuana and the Workplace, Dinsmore & Shohl, LLP (Sept. 8, 2010), http://www.jdsupra.com/post/documentViewer.aspx?fid=75d08a35-70ed-415c-af40-d86c4b1dd91a.

Shelly K. Schwartz, The Drug-Free Workplace vs. Medical Marijuana, CNBC.com (Apr. 20, 2010), http://www.cnbc.com/id/36179669/The_Drug_Free_Workplace_vs_Medical_Marijuana

My Fox Phoenix.com, Medical Marijuana and the Workplace, Dec. 1, 2010, http://www.myfoxphoenix.com/dpp/money/job_news/medical-marijuana-and-the-workplace-12-1-2010.

Jon Coppelman, Medical Marijuana in the Workplace: Dude, Lock Me Out!, Workers’ Comp Insider (Feb. 7, 2011), http://www.workerscompinsider.com/2011/02/medical-marijua.html.

Jessica Pieklo, Medical Marijuana and the Workplace: Wal-Mart Suit Tests Some Limits, Care2.com, http://www.care2.com/causes/civil-rights/blog/medical-marijuana-and-the-workplace-wal-mart-suit-tests-some-limits/.

Eric B. Meyer, Can an Employee be Fired for Using Medicinal Marijuana? The Employer Handbook (Feb. 22, 2011), http://www.theemployerhandbook.com/2011/02/employee-medicinal-marjiuana-fired.html.

Recent Employment / Labor Case Involving Non-Prescribed Marijuana:

Consolidation Coal Co. v. Local 9909, 2010 U.S. Dist. LEXIS 89035 (N.D. W. Va. 2010). The United States District Court for the Northern District of West Virginia held that an arbitrator did not exceed her authority by ordering reinstatement of a coal miner who was discharged after testing positive for marijuana.

See also Mitchell H. Rubinstein, Reinstatement of Coal Miner Who Tested Positive for Marijuana Upheld, Adjunct Law Prof Blog (Aug. 25, 2010), http://lawprofessors.typepad.com/adjunctprofs/2010/08/reinstatement-of-coal-miner-who-tested-positive-for-marijuana-upheld.html.

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