Dawn Irizarry (firstname.lastname@example.org) and Carolina Schwalbach (email@example.com) are both Partners at Carothers DiSante & Freudenberger LLP – Counsel to California Employers in Los Angeles, CA.
In 1996, California was the first state to legalize medical use of marijuana by enacting the Compassionate Use Act, which was designed to provide certain legal protections to patients, caregivers, and physicians. Under the Compassionate Use Act, physicians who prescribe or recommend the use of smoked marijuana for medical reasons, individuals who use marijuana for medical reasons, and caregivers who assist those patients when using cannabis for medical reasons are exempt from criminal prosecution. Since the passage of the Compassionate Use Act, all but four states in the US have passed similar legislation and some have adopted more expansive laws legalizing marijuana for recreational use, including Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington, and the District of Columbia. Most other states allow some form of marijuana, CBD (cannabidiol, “the non-psychoactive component of the cannabis plant” ), and/or low-THC (tetrahydrocannabinol, “the psychoactive component in cannabis” responsible for most of marijuana’s psychological effects) products for medical use, with the exception of Kansas, which only allows “CBD products with 0% THC” ; Idaho, which has limited-access marijuana product laws; and Nebraska and South Dakota, which “have limited, trial programs that are not open to the public.”
Even though the legalization of medical marijuana was meant (in part) to protect physicians from prosecution, this wave of legalization has left healthcare employers with many unanswered questions surrounding what their rights are with respect to THC testing, as well as the kinds of workplace policies employers can have regarding the use of marijuana. The answers to these questions may vary depending on the situation and the state at issue, among other reasons. Nevertheless, below, we provide some guidance regarding an employer’s rights and responsibilities in relation to marijuana testing.
How can healthcare employers regulate the use of marijuana in the workplace?
The answer to this question is somewhat complicated and requires further explanation regarding an employer’s obligations under the Americans with Disabilities Act (ADA) and related state analogs. Under the ADA and related state anti-discrimination laws, employers are required to (1) engage in the interactive process with employees suffering from a disabling condition to identify a reasonable accommodation upon being notified that an employee suffers from a condition requiring some form of accommodation and (2) provide a reasonable accommodation to the employee suffering from a disabling condition when doing so will aid the employee in performing their essential job functions.
Marijuana is an illegal drug under federal law
The ADA is designed to protect employees from disability discrimination. There are myriad medical conditions that qualify as a disability under the ADA for which doctors have started prescribing marijuana as the recommended treatment. These conditions include cancer, AIDS, post-traumatic stress disorder, Parkinson’s disease, and many others where a jury will certainly have sympathy for the employee. Despite this, it is important to remember that marijuana is still considered an illegal substance under the federal Controlled Substances Act of 1970. (“The Controlled Substances Act (CSA) places all substances which were in some manner regulated under existing federal law into one of five schedules. This placement is based upon the substance’s medical use, potential for abuse, and safety or dependence liability.” ) Under the CSA, cannabis containing more than 0.3% THC is classified as a Schedule I controlled substance (like heroin) because it has no “accepted medical use” and because it poses a high risk for abuse and physical and psychological dependence.
The ADA has a carve-out for drugs that are illegal under federal law. In James v. City of Costa Mesa, 700 F.3d 394, 397 (9th Cir. 2012), the United States Court of Appeals for the Ninth Circuit upheld and highlighted this carveout by holding that medical marijuana use did not come within the ADA exception for drug use “authorized by…other provisions of Federal law.” For healthcare employers, this means that under federal law, while an employer is required to engage in the interactive process and to accommodate an employee who suffers from a disabling condition, the employer need not accommodate the use of medical marijuana to treat that underlying condition.
What about state law?
When marijuana was first legalized under state medical marijuana use laws, many states still permitted employers to terminate employees testing positive for marijuana even if those employees were engaging in the lawful use of medical marijuana under state law. Even though California was the pioneer in the legalization of marijuana, to date, it has not implemented provisions that would prohibit employers from taking disciplinary action (up to and including termination) against employees who test positive for marijuana use. In Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008), the California Supreme Court held that the Fair Employment and Housing Act does not require an employer to accommodate an employee by allowing the use of medicinal marijuana, stating “no state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law…even for medical users.” Thus, while some might find it surprising, California employers may fire an employee under the influence of medical marijuana, or one who fails a drug test because of off-duty use of medical marijuana. What employers cannot do in California (or in any other US jurisdiction) is discriminate against an employee due to the underlying disability that resulted in the need for the use of medical marijuana. Simply put, the requirements for a California employer are the same as those under federal law; specifically, California employers must accommodate the underlying condition, but need not accommodate the use of medical marijuana.
Nevertheless, that may soon change. In February 2020, Assembly Bill 2355, an act to amend Section 12940 of the Government Code relating to employment discrimination—medical cannabis, was introduced (and is pending review), which would make it an unlawful employment practice for an employer or other entity to refuse to hire or employ a person, or to discriminate against an employee, because of the employee’s use of medical cannabis. If signed into law, the bill will grant people who use medical cannabis while employed the same rights to reasonable accommodation and the associated interactive process as those employees who are prescribed and use other legal drugs for medical purposes. It is also worth noting that in San Francisco, California, employers may not make hiring decisions based on conviction for a crime that has since been “decriminalized.”
These anti-discrimination laws are nothing new. Indeed, several states have enacted laws prohibiting employers from taking action against employees who lawfully use marijuana for medical reasons. For example, Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Oklahoma, Pennsylvania, Rhode Island, and West Virginia prohibit an employer from discriminating against an applicant or employee based on medical marijuana use. Some states, such as Nevada, New York, and Massachusetts, impose significant restrictions on an employer’s ability to terminate or rescind an offer for a positive test. In the state of Arizona, an employer may be required to accommodate the use of medical marijuana.
All that said, employees do not have free reign to use marijuana in the workplace, which is why carefully drafted policies that speak to the use of any illegal drugs are imperative. Employers who wish to maintain policies pertaining to the use of controlled substances should ensure that their policies make clear that prohibited drug use extends to all drugs prohibited by federal law, including marijuana, even in states where medical and/or recreational use has been legalized. And, all employers should maintain a policy that prohibits being under the influence of marijuana while at work and/or while performing duties on behalf of the company.
Should healthcare employers test for marijuana?
Whether to perform a drug test is a hot topic that naturally flows from the developing changes to state laws governing marijuana use and is one that healthcare employers are especially concerned about given the number of patient-facing positions within the workforce.
Employers have an obligation to test employees in safety-sensitive positions
Federal law imposes few restrictions on an employer’s ability to perform drug testing and even requires drug testing in certain safety-sensitive positions. For example, commercial truck drivers and airline pilots are required to undergo drug testing under federal law and school bus drivers must be drug tested in many states. The Occupational Safety and Health Administration “has also stated that a failure to take action (by testing and disciplining) in the face of apparent employee drug intoxication, is a failure to provide the ‘safe and healthful workplace’ mandated by federal law.” Similar to testing for alcohol use (which is also legal, but may result in unsafe intoxication while at work), testing for THC is an important consideration as it allows an employer to remove those under the influence who may pose safety threats to themselves, other employees, and/or to the public.
Even in those states adopting anti-discrimination provisions or other legislation pertaining to the use of marijuana and its interrelation to the workplace, “safety-sensitive” carve-outs are of utmost importance, particularly to healthcare employers. Currently, Hawaii, Maryland, Missouri, Nevada, New Hampshire, New York, Oklahoma, and West Virginia have adopted related safety-sensitive carve-outs. In some instances (e.g., Hawaii) these safety-sensitive carveouts are very general in that they exempt “[t]he medical use of cannabis that endangers the health or well-being of another person.” From this language, one can easily argue that anyone providing patient care would fall under the safety-sensitive carve-out. In other states, like Maryland, the carve-out applies to anyone (1) undertaking a task while under the influence of marijuana, which would amount to professional negligence, and (2) “operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or boat while under the influence of marijuana.” In New York, the carve-out is much more explicit and includes “any position requiring the supervision or care of…medical patients.” Similarly, in Oklahoma, the safety-sensitive carve-out includes anyone “dispensing pharmaceuticals” and/or providing “direct patient care.” These safety-sensitive carveouts will become more and more important as additional jurisdictions pass anti-discrimination legislation related to medical marijuana usage, especially given the need for health organizations to ensure safe patient care. In light of the differences from state to state regarding anti-discrimination legislation and related carve-outs, healthcare employers would be wise to consult with counsel to develop a plan as to how best to address patient safety considerations when creating policies related to the use of cannabis. What about nonpatient-facing positions?
Employers will also need to decide whether to proceed with testing for nonpatient-facing positions and/or positions that are not directly related to patient care (such as admissions, accounting, and human resources, to name a few). As more and more states move toward limiting the use of preemployment tests for marijuana use, this determination will require a careful review of the state laws at issue. For instance, New York City bans employers from conducting any preemployment testing for marijuana use, although the law provides exceptions for certain job positions. Similarly, “a Nevada law now bars employers from taking adverse action based on a positive pre-employment marijuana test result” (again, with some exceptions).
The California Constitution provides that all individuals have a right to privacy. The California courts have held that the right to privacy is implicated when an employer requires drug testing and have placed certain limitations on whether and when an employer may perform drug testing. For applicants, employers may test following a job offer, provided the employer tests all applicants for the position at issue. Once employment commences, a California employer may only conduct random drug testing for safety-sensitive positions and/or where the employer has a “reasonable suspicion” that the employee is under the influence of drugs or alcohol. Reasonable suspicion that a worker is under the influence sufficient to require drug testing is an objective criteria and would include irritable or drowsy behavior, watery eyes, strong odors, confused or blank facial expressions, and delayed cognitive movements.
Issues regarding drug testing are further complicated because there is no consensus as to the amount of THC resulting in an impairment. In addition, different people may test positive for different (oftentimes extended) periods of time after use. And, there is evidence that the effects of smoking marijuana can continue from several hours to days after use. Therefore, it is important that employers have workplace policies that spell out objective circumstances that would prompt reasonable suspicion that a worker is under the influence, such as the criteria identified above. Such a policy based on reasonable suspicion should also note that the employee can be subject to termination should they refuse to comply.
Based on the foregoing, prudent healthcare employers in every state should preserve the right to drug test employees for marijuana under appropriate circumstances while clarifying that an employee’s disability and/or need for a reasonable accommodation will always be evaluated by the employer on a case-by-case basis.
While different states will drive the need for specific policies and requirements, the following advice applies to all healthcare employers in the United States:
Ensure that your organization has a detailed policy that: (1) defines an “illegal drug” as any drug that is classified as an illegal drug under any federal, state, or local law (including any form of marijuana or product containing THC) and (2) includes information regarding what constitutes “reasonable suspicion” that would trigger testing, as well as related consequences for testing positive and/or refusing to cooperate.
Healthcare employers may want to consider mandatory preemployment drug testing, at least for every patient-facing position.
Healthcare employers should consider how best to address potential patient safety issues if an employee discloses that they have a marijuana card or a condition that is being treated with marijuana.
Employers should assure employees that they will reasonably accommodate any underlying medical conditions but that such accommodation will never involve allowing employees to possess, use, or be under the influence at work.
Ensure that any disciplinary action taken is based on objective conduct (smoking at work, being clearly intoxicated, etc.) and not just based on the presence of THC in someone’s system left over from the off-work use, for example.
While marijuana is still considered an illegal substance under federal law, most state laws allow for the use of medical marijuana.
Employers need not accommodate by allowing the use of medical marijuana under the Americans with Disabilities Act; however, employers must engage in the interactive process and reasonably accommodate the underlying medical condition.
Many states have extended anti-discrimination protections for employees who use marijuana for medical reasons.
Even though California law allows for the use of medical marijuana, an employer may terminate an employee for being under the influence of marijuana while at work.
In California, employers may conduct preemployment drug testing once an offer has been made, and for current employees, a random drug test may be performed only if there is a “reasonable suspicion” of drug use or for employees holding safety-sensitive jobs.