Medical Marijuana in the Workplace?

April 27, 2015

Marijuana plants are displayed for sale at Canna Pi medical marijuana dispensary in SeattleAs medical marijuana becomes legal in more and more states, employers are becoming increasingly concerned about how this will affect their workplace policies. Employers are wrestling with the issue of whether state-authorized marijuana use—use that takes place off the employer’s premises and during non-working hours—constitutes lawful activity. A handful of states have lawful activity statutes, which generally affirm that employers are prohibited from terminating employees if the termination is due to an employee engaging in a lawful activity that takes place off the employer’s premises and during non-working hours.

Legal Results Medical MarijuanaA case in the Colorado Supreme Court may be a solid indicator of whether states will allow state-authorized marijuana users to use lawful activities statutes to protect themselves against termination. In Coats v. Dish Network, a quadriplegic man was terminated from his job at Dish Network after a drug test showed he had inactive THC (a chemical found in marijuana) in his system. He alleges his termination violated Colorado’s Lawful Activities Statute, which prohibits employers from terminating employees for engaging in legal, off-duty conduct. So far, the district court and the Colorado Court of Appeals have sided with Dish Network, ruling the Colorado Constitution did not protect Coat’s right to use medical marijuana, but only protected him from criminal prosecution.

This conversation places pressure on employers, who will likely need to consult legal counsel to change their drug policies and handbooks. Minnesota’s new law, which goes into effect this summer, specifically prohibits discrimination in the workplace for those who are registered in Minnesota’s medical marijuana registry. This means that an employer cannot discriminate against or terminate an employee for testing positive for THC unless the patient used, possessed, or was impaired by the drug on the employer’s premises or during the hours of employment. But the same Minnesota law also allows employers to terminate or refuse to hire people enrolled in the registry, or people who have positive drug tests if employing them could result in the loss of monetary or licensing benefits from the government.

The bigger issue at play is whether illegal actions under federal law can be lawful within the meaning of the state statutes. Employers need to watch this law closely to ensure compliance with the new law, while also being aware of the federal implications. Regardless, employers will need to update their policies and handbooks to protect themselves from liability.