Up in Smoke: Evaluate Your Drug Policies as Marijuana Laws Evolve

June 10, 2019

The legalization of marijuana has slowly spread throughout the United States. As of the date of this article, 10 states and Washington, D.C., have legalized marijuana on a recreational basis (generally meaning that people older than 21 are able to possess and use certain quantities of the drug). Thirty-three states have legalized marijuana on a medicinal basis (generally meaning that patients may obtain the drug with a doctor’s prescription). Wisconsin, though, remains in the minority, and has yet to legalize the drug on either basis. However, that may soon change.

A vast majority of Wisconsinites showed their support for the legalization of marijuana by voting on nonbinding referenda in the 2018 midterm elections. In addition, Governor Tony Evers has indicated his support for the legalization of medical marijuana. Thus, it appears that it may only be a matter of time before Wisconsin begins to seriously tackle the issue of legalizing marijuana.

What’s the Impact on Employers?

As an employer, Wisconsin’s potential legalization of marijuana may have you thinking about your drug-testing policies. If the drug is legal, is it still OK to take adverse employment action against employees who test positive for the drug?

The issue is even more complicated by the fact that Wisconsinites may currently purchase products containing cannabidiol, also known as “CBD.” CBD is a derivative of the hemp plant and may contain trace amounts of tetra-hydrocannabinol (THC), the chemical compound in marijuana that produces intoxicating effects. While the THC content in CBD must be at or below 0.3 percent, someone who uses CBD may still test positive for marijuana on a drug screen.

This article provides a brief overview of the laws implicated by employees’ marijuana use. Because marijuana remains illegal in Wisconsin, few courts have addressed whether a person who legally uses the drug and subsequently tests positive on an employer-mandated drug test may be subject to adverse employment action. However, courts in states that have legalized marijuana have confronted the issue, and Wisconsin employers would be wise to use those decisions as predictive guidance.

ADA Accommodations

The Americans with Disabilities Act (ADA) is a federal law that, in part, ensures individuals with disabilities are treated fairly in the workplace. Under the ADA, a person is generally deemed to have a disability if he suffers from a “physical or mental impairment that substantially limits one or more major life activities.” Employers are required to provide reasonable accommodations to enable disabled employees to perform their job duties, as long as the accommodations don’t create an undue hardship on business operations.

An employee who has obtained a doctor’s prescription for medical marijuana will likely claim to suffer from a disability that necessitates her use of the drug. That will naturally lead to an inquiry into whether her employer’s duty to provide reasonable accommodations under the ADA prohibits it from taking adverse employment action against her for testing positive for marijuana. In fact, that precise issue has been addressed by several courts throughout the country.

Looking to Other States for Guidance

In a February 2019 case, Whitmire v. Wal-Mart Stores Incorporated, a federal district court in Arizona ruled in favor of an employee who had obtained a medical marijuana card that enabled her to possess and use medicinal marijuana. The employee, who suffers from arthritis, used the drug at night as a sleep aid. She claimed she never used marijuana before her work shifts and never was impaired or possessed the drug at work. After testing positive for marijuana on a drug screen administered by her employer, she was terminated.

The employee sued her former employer under several Arizona laws, including the Arizona Medical Marijuana Act (AMMA) and the state’s statutory equivalent to the ADA. In part, she alleged her termination constituted discrimination by her former employer. The court ruled in favor of the employee, stating “without any evidence that [she] ‘used, possessed or was impaired by marijuana’ at work, . . . it is clear that [the employer] discriminated against [her] . . . by suspending and then terminating [her] solely based on her positive drug screen.”

Other courts have come to similar conclusions. In Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court also ruled in favor of an employee who was terminated after she tested positive for marijuana. The employee suffers from Crohn’s disease and is a qualified medical marijuana patient under Massachusetts law. The employer told her that it follows federal law, which prohibits marijuana use even on a medicinal basis, not the Massachusetts law that legalized medical marijuana.

The employee sued her former employer under Massachusetts’ ADA-equivalent law, claiming she was discriminated against as a result of her disability. In its defense, the employer argued that “because the prescribed medication is marijuana, which is illegal to possess under [f]ederal law, an accommodation that would permit the [employee] to continue to be treated with medical marijuana is [inherently] unreasonable.” The court wasn’t convinced and ruled that the employer had in fact discriminated against the employee based on her disability when it terminated her employment.

Various state statutes are in alignment with those rulings. For instance, Connecticut law states, “No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of [his] status as a [medical marijuana] patient.” However, that statute goes on to state that it doesn’t “restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”

Similarly, the law in Delaware states:

Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon . . . [a medical marijuana] patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

So, a review of case law and statutes from states that have legalized medicinal marijuana indicates that adverse employment action against an employee who uses the drug in compliance with state law amounts to discrimination under anti-discrimination laws similar to the ADA. Notably lacking from that analysis is any reference to discrimination against employees who use marijuana on a recreational basis. As a result, employers in states that have legalized recreational marijuana may still enforce their policies against employees who use the drug recreationally.

Wisconsin Laws

Because marijuana is still illegal in Wisconsin both medicinally and recreationally, our legislature hasn’t enacted any laws addressing employment discrimination against medical marijuana patients. However, under the Wisconsin Fair Employment Act (WFEA), employers are prohibited from taking discriminatory action against employees under certain circumstances, including on the basis of their off-duty use of a legal product such as alcohol or tobacco. If Wisconsin legalizes medicinal marijuana, an employee could argue that an adverse employment action based on a positive test for marijuana is discriminatory. Even so, an employer that creates a policy that notifies employees of its zero tolerance for the presence of THC in a drug test may foreclose such claims while marijuana remains illegal at the federal level.

But because CBD use is prevalent, it’s conceivable that an employee could test positive for THC while never having used marijuana. Employers should be hesitant to take swift adverse action against employees in those circumstances. Under the WFEA, you may not take employment action or refuse to hire someone on the basis of his use of a lawful product outside your premises during nonworking hours unless his use of the product conflicts with federal or state law.

While the legal status of CBD is murky in Wisconsin, the product is legal under federal law. If an employee tests positive for THC after using only CBD, you may find yourself in hot water if you take punitive action against him because of the positive test result.

Bottom Line

If anything is clear about state and federal laws pertaining to an employer’s ability to take adverse action against an employee who tests positive for marijuana, it’s that the laws are rapidly changing, and their application has yet to play out. In the meantime, you can take certain actions to align yourself with best practices.

First, enact and enforce sensible drug policies. Policies that prohibit employees from possessing, using, or being impaired by marijuana on your premises and during working hours clearly make sense. However, terminating an employee solely because of a THC-positive drug test without conducting an investigation is ill-advised. Instead of taking immediate punitive action when an employee tests positive for THC, communicate with the employee to learn more about the test result and the circumstances surrounding her use of the substance that caused the positive result.

Finally, pay close attention to legal developments in this area. As more states legalize marijuana, federal laws are also likely to change. You should reevaluate and modify your current employment practices and policies to align with the law as it continues to change.

For more information about "Up in Smoke: Evaluate Your Drug Policies as Marijuana Laws Evolve," contact Conor Leedom at cleedom@axley.com or 262.409.2286.