The rapid expansion of legal medical and recreational marijuana use across the U.S. has immediate implications for employers. As the number of users grows, employers should re-examine zero-tolerance drug policies that include marijuana prohibitions. Further, contractors with employees who work in dangerous conditions should consider whether their existing policies regarding prescription drugs should be tailored to encompass marijuana use. This article analyzes the current state of law and the options that employers may have.

Employer Marijuana Prohibitions Largely Upheld in Court…So Far

Employees across the U.S. have challenged employer policies and decisions regarding marijuana use. Yet, they have largely failed, albeit on differing legal grounds. Employee challenges have often focused on two key questions under federal and state disability law:

1. Does accommodating a disabled employee’s marijuana use cause an undue burden for the employer?
2. Does the disabled employee’s marijuana use create a direct threat to the employee or others in the workplace?¹

The California Supreme Court was one of the first courts to consider these issues under state law. The court found that the California Fair Employment and Housing Act (FEHA) “does not require [an] employer to accommodate the use of illegal drugs.”² The employee’s “physician recommended…marijuana to treat chronic pain, [and] was fired when a preemployment drug test…revealed his marijuana use.”³ The employee argued that his termination violated FEHA and that he was wrongfully terminated. The California Supreme Court disagreed, noting that the law did not apply to this employee/employer relationship.⁴ However, this case did not address whether an employee’s use of marijuana during off hours would be permitted.⁵

In Gonzales v. Raich, the U.S. Supreme Court ruled that, under the Commerce Clause of the U.S. Constitution, Congress could criminalize the production and use of homegrown marijuana regardless of state law.⁶ Although Raich argued that she only used homegrown marijuana, the court held that federal law would generally override state law in the context of marijuana regulation, whether homegrown or involving interstate commerce.

Additionally, some courts have found that the federal government’s right to prohibit marijuana⁷ is not diminished by the federal Americans with Disabilities Act (ADA) or state human rights laws. For example, disabled medical marijuana patients sued the city of Costa Mesa in James v. City of Costa Mesa, where the city had taken actions to shut down local marijuana dispensaries that were authorized to operate under California state law.⁸

The plaintiffs argued that, because medical marijuana was legal under California law, the use of medical marijuana was therefore protected by the ADA.⁹ Noting that the ADA does not protect individuals currently engaging in the “illegal use of drugs,” the Ninth Circuit found that, because federal law prohibits marijuana use, such use was not protected by the ADA.¹⁰

Further, state statutes may expressly govern. For example, one court determined that the Montana Human Rights Act “specifically provides that it cannot be construed to require employers ‘to accommodate the medical use of marijuana in any workplace.’”¹¹

Growing State Protections for Employees Ignite New Concerns for Employers

Employers’ own policies and new state statutes and court decisions appear to challenge the current landscape.