Protecting medical marijuana users in the workplace.

AuthorHarvey, Kathleen

Contents Introduction I. Marijuana Regulation Since the 1970s II. Workplace Drug Testing III. Court Responses to Conflicting Federal and State Marijuana Laws A. The Risk of Federal Preemption 1. State Courts Have Come to Different Decisions about Whether Federal Law Preempts State Medical Marijuana Laws 2. Federal Law Should Not Preempt a State's Attempt to Provide Employment Rights to Its Medical Marijuana Patients B. Even If Not Preempted, State Medical Marijuana Statutes Fail to Adequately Protect Employees IV. Some State Medical Marijuana Statutes Do Include Employment Provisions V. Statute Recommendation A. Statute Language B. Statute Analysis 1. Section (a)--Who and What is Protected by this Statute 2. Section (b)--When Medical Marijuana Use Is Not Protected by this Statute 3. Section (c)--Respecting State Drug Testing Laws 4. Section (d)--Additional Protection for Employers Conclusion Introduction

Despite the fact that some states have legalized medical marijuana, disabled employees are being fired for using it. Gary Ross, disabled from injuries suffered while he served in the United States Air Force, began using medical marijuana after traditional medications failed to alleviate his pain. (1) Joseph Casias used medical marijuana to alleviate pain caused by sinus cancer and an inoperable brain tumor. (2) Brandon Coats, a quadriplegic, used medical marijuana to control painful muscle spasms caused by his paralysis. (3) All of these employees were fired when their employers found out that they used marijuana. (4)

How can someone be fired for using a drug that is authorized by state law? Normally, the federal Americans with Disabilities Act (ADA) would protect disabled persons that use legally prescribed drugs from employment discrimination that stems from that drug use. But the ADA does not protect users of illegal drugs, and marijuana is illegal under federal law. (5) Thus, the ADA does not protect disabled medical marijuana users when they are fired for violating workplace drug testing policies.

Medical marijuana users have tried suing their employers under the theory that state medical marijuana laws protect employees from the consequences of violating drug-free workplace policies. (6) But, in the absence of explicit statutory language granting employment protection to medical marijuana users, the courts refuse to rule in favor of the employees. Court decisions favoring employers place a substantial burden on medical marijuana patients--choosing between "giving up what may be their only source of income, or ... discontinuing] marijuana treatment, and try [mg] to endure their chronic pain or other condition for which marijuana may provide the only relief." (7) A clearly drafted statutory provision that prevents employers from using medical marijuana users' drug use as a reason to terminate them will alleviate the burden that employees currently bear.

Part I of this Note gives a brief history of marijuana regulation in the United States. Part II describes how drug testing works and why employers do it. And it presents some of the issues that the federal prohibition poses for employers and employees. Part III analyzes state court opinions that have addressed the question of whether employers may fire employees for off-site medical marijuana use that does not impair work performance. Every court thus far has ruled in favor of the employer, but some of the opinions and dissents acknowledge that the legislatures could amend their states' statutes to include employment protections for medical marijuana users. Part IV analyzes the strengths and weaknesses of the state medical marijuana laws that include some form of employment protection. Finally, Part V proposes statutory language that could be included in state medical marijuana laws to protect employees from termination simply because of their authorized use of marijuana.

  1. Marijuana Regulation Since The 1970s

    Marijuana is illegal under federal law. (8) But its legal status in the states is rapidly changing. Twenty-three states, as well as the District of Columbia, currently allow medical marijuana. (9) Four states and D.C. also allow marijuana for recreational use. (10) The change in state laws reflects the public's changing opinion on marijuana. (11) Federal law, however, remains unchanged. The federal Controlled Substances Act (CSA) classifies marijuana as a Schedule I substance, meaning that marijuana has no medicinal value and high potential for abuse. (12)

    Because the drafters of the CSA had limited knowledge of marijuana, they created the National Commission on Marihuana and Drug Abuse (Commission) to study marijuana and submit a report to Congress with its findings and recommendations.13 Congress mandated that the Commission research (1) the prevalence of marijuana use in the United States, (2) "the efficacy of existing marihuana laws," (3) the physiological and psychological long-term effects of marijuana, (4) the relationship between marijuana use and aggression and crime, (5) "the relationship between marihuana and the use of other drugs," and (6) "the international control of marihuana." (14)

    The Commission released its report, Marihuana: A Signal of Misunderstanding (Report), in 1972. (15) After conducting over fifty projects, (16) the Commission rejected the federal government's total prohibition policy on marijuana. (17) The Report stated that "[t]his policy grew out of a distorted and greatly exaggerated concept of the drug's ordinary effects upon the individual and the society." (18) The Report recommended instead a policy of decriminalization pending more research on marijuana. (19) Congress did not listen to the Commission's recommendations and has kept marijuana as a Schedule I substance.

    Despite the Commission's recommendation to continue researching marijuana, those who wish to do so face significant obstacles in the United States. (20) The only federally legal source for researchers to obtain marijuana is a twelve-acre plot at the University of Mississippi, controlled by the National Institute on Drug Abuse. (21) To access this marijuana, researchers must gain approval from a number of federal administrative agencies. (22) Between 1999 and June 2015, only sixteen independently funded studies obtained marijuana through this process. (23) This process is "complicated" and does not fulfill the demand for medical marijuana research. (24)

    Along with research from other countries and analysis of self-reported data, the results of the FDA-approved clinical marijuana studies, suggest that marijuana does have a medicinal value, despite its Schedule I classification. The research suggests that marijuana can benefit persons suffering from a myriad of conditions, including chronic pain, (25) epilepsy, (26) spasticity, (27) and cancer. (28) While the growing body of research on marijuana's beneficial therapeutic uses has not swayed the FDA or DEA to reschedule marijuana, it has swayed voters and legislators in twenty-three states to make marijuana available for medical use. (29)

    Federal enforcement of the CSA in the twenty-three states that have legalized medical marijuana is weak. In 2009 Deputy Attorney General David Ogden released a memo addressed to federal prosecutors saying that prosecution of seriously ill individuals using marijuana in compliance with state law was an inefficient use of federal resources. (30) Deputy Attorney James Cole reaffirmed the Ogden Memo in 2011. (31) In 2013, Cole issued another memo offering more guidance to federal prosecutors on how to treat state law-compliant medical marijuana users. (32) In the Memo, Cole outlined the following eight enforcement priorities: (1) keeping marijuana away from minors, (2) preventing criminal enterprises from profiting from medical marijuana, (3) restricting marijuana diversion from one state to another, (4) ensuring that legal marijuana activity is not a pretext for illegal activity, (5) preventing violence and gun activity in marijuana growing, (6) preventing drugged driving and other adverse public health consequences, (7) protecting federal land, and (8) keeping marijuana off of federal property. (33) Outside of these eight priorities, the Department of Justice "has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws." (34)

    In December 2014, Congress passed an omnibus spending bill that prohibited use of federal funds to interfere with state medical marijuana laws. (35) That meant that for the 2015 fiscal year the Department of Justice will be unable to use any funds to prevent states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana." (36) This, in addition to the Ogden and Cole memos, sends the message that Congress does not think that the CSA should be enforced against medical marijuana users.

    While the current federal policy towards medical marijuana is non-enforcement, marijuana remains illegal under the CSA. Enforcement policies are subject to change with administrations, so, until the CSA is amended, the federal government will retain the power to prosecute violations of the CSA. As long as marijuana remains on Schedule I, employers can argue that their drug-free workplace policies, likely containing blanket prohibitions on illegal drugs, apply to medical marijuana users.

  2. Workplace Drug Testing

    Despite the quasi-legal status of marijuana, employers can still fire medical marijuana users for positive drug tests. One of the strongest criticisms against drug testing raised by medical marijuana users is that urine tests, the most common form of drug tests, are not an indication of marijuana impairment. (37) A few hours after marijuana is ingested, marijuana's primary psychoactive ingredient, delta-9-tetrahydrocannabinol (THC), (38) metabolizes into a non-psychoactive metabolite, THC-COOH...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT