Twenty-three states and the District of Columbia have passed laws legalizing the use of medical marijuana. There are even a few states that have legalized the recreational use of marijuana. So what’s an employer in one of these states to do with its drug-free workplace policy?
The simple answer: Keep the policy, publicize the policy and its requirements to all employees, and conduct annual training on the policy for your staff and supervisors. Whatever your policy is, make sure each person on your staff understands it completely.
Remember that under the current federal Controlled Substances Act, marijuana remains a Schedule I substance [1]. Being a Schedule I substance means that under federal law, marijuana has no accepted medical use, has a high risk of abuse and has a lack of accepted safety for use under medical supervision [2].
This makes the use, possession or manufacture of marijuana a federal criminal offense, except where used for federally approved research projects [3]. The federal law makes no exception for marijuana use for medicinal purposes, or for marijuana use conducted in accordance with state law [4].
The Drug-Free Workplace Act of 1988 requires some federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a federal agency. If your ambulance service is one of the applicable contractors or grantees, you are required under federal law to have a drug-free workplace policy.
However, even if your ambulance service is not a federal contractor or a federal grantee, your ambulance service may still put into place a drug-free workplace policy. The key is to work with your legal counsel to draft a policy so you can ensure that your employees are not coming to work under the influence of drugs or alcohol that could preclude them from safely performing the essential duties of their positions.
Employer’s right to enforce
So far, the courts have unanimously upheld an employer’s rights to have and enforce a drug-free workplace policy.
Colorado has one of the more lenient state laws regarding marijuana. In Colorado, not only does state law permit the use of medical marijuana, it also permits the recreational use of marijuana. The Colorado law does specifically permit employers to enact policies restricting the use of marijuana by employees, however, both at work and outside of work.
To add additional support to the employer’s right to impose restrictions on the use of marijuana by employees, the Colorado Supreme Court recently ruled that it was OK for an employer to terminate an employee for using marijuana at his home and with a valid medical marijuana card, in violation of the employer’s policies [5]. This holding is similar to the holdings of several other courts that have looked at this issue [6].
Two questions
If you suspect an employee has come to work high, determine your actions by answering these two questions:
1. Do you have a drug-free workplace policy that prohibits employees from coming to work while high?
2. Do you have a drug-free workplace policy that permits you to send employees for a drug test, such as a urinalysis, if you have a reasonable suspicion that the employee is high?
If you answer yes to both questions, then simply send the employee for a urinalysis. Do not let the employee return to duty until you get the results.
If it turns out you were wrong and the employee’s urinalysis comes back clean, then pay the employee for the missed shifts and move on. Consider a discussion with the employee about the employee’s behavior or affect that led you to believe he or she was impaired or under the influence.
If the employee’s urinalysis does not come back clean, then your policy did what it was supposed to do. It kept your workplace and your patients safe. Follow the policy’s action steps for coaching, counseling discipline and/or termination.
References
- 21 U.S.C. § 844(a).
- 21 U.S.C. § 812(b)(1)(A)-(C).
- 21 U.S.C. § 844(a); see also Gonzalez v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005).
- 21 U.S.C. §844(a); see also Gonzales, 545 U.S. at 29 (finding that “the Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail,” including in the area of marijuana regulation).
- Coats v. Dish Network, LLC, 2015 CO 44; 350 P.3d 849 (CO 2015).
- See, for example, Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012) (holding that the Michigan Medical Marijuana Act does not restrict a private employer’s ability to discipline employees for medical marijuana use); Ross v. RagingWire Telecomms., Inc., 174 P.3d 200 (Cal. 2008) (holding that the California Fair Employment and Housing Act does not require an employer to accommodate an employee who used medical marijuana and that an employee who is terminated for authorized medical marijuana use cannot state a cause of action for termination in violation of public policy); Johnson v. Columbia Falls Aluminum Co. LLC, No. DA 08-0358, 2009 MT 108N; 2009 Mont. LEXIS 120 (Mont. 2009) (holding that an employee who was terminated for use of medical marijuana could not state a claim under the Montana Human Rights Act or the Americans with Disabilities Act); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518, 536 (Oreg. 2010) (holding that the Oregon Medical Marijuana Act was preempted by the Federal Controlled Substances Act and, therefore, the employee’s use of medical marijuana was illegal and was not entitled to accommodation); Roe v. TeleTech Customer Care Mgmt., 257 P.3d 586, 594-95 (Wash. 2011) (holding that the Washington State Medical Use of Marijuana Act does not proclaim sufficient public policy to support a cause of action for wrongful termination).
