In 2012, voters in Colorado and Washington State passed initiatives to legalize the recreational use of marijuana. More than a dozen other states have decriminalized possession of small amounts of marijuana, and NH recently became the 19th state to allow its use for medicinal purposes. Efforts to relax the rules governing marijuana use and possession are gaining momentum. At least two states, including New York and Texas, currently have proposed legislation that would legalize marijuana for medicinal purposes, and medical marijuana laws go into effect in Maryland on Oct. 1 and in Illinois on Jan. 1.
What do these state law trends, including the new medical marijuana law in NH, mean for employers? Is a zero-tolerance drug-testing policy still enforceable? Can an employer fire an employee, covered by this law, because they test positive for marijuana? If an employee lawfully uses medical marijuana, does the recently enacted NH law require employers to accommodate the employee’s use of marijuana?
NH Medical Marijuana Act
House Bill 573, as recently signed into law by Gov. Maggie Hassan, permits qualified health care professionals to recommend the use of marijuana for patients who have been in their care for a minimum of three months with limited exceptions for serious medical conditions such as cancer, AIDS, multiple sclerosis and Crohn’s disease. The health care professional must verify that the patient suffers from a serious medical condition listed in the medical marijuana law and has exhibited certain symptoms. A qualifying patient who has been issued an identification card by the state may assert an affirmative defense, and avoid a criminal conviction, if arrested and/or charged with certain state marijuana offenses.
Initial versions of HB 573 expressly prohibited employers from discriminating against an individual in hiring, termination, or any term or condition of employment based on a “registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used or possessed, or was under the influence of or impaired by marijuana on the premises of the place of employment.” Those terms were removed from the final version. As enacted, HB 573 does not impose any specific obligations on NH employers, and employers remain free to prohibit the use, possession or distribution of marijuana in the workplace for any reason. The law expressly provides that a qualifying patient may not avoid arrest or prosecution for being under the influence of or possessing cannabis while in the workplace.
The law provides that employers are not required to accommodate “the therapeutic use of cannabis on the property or premises of any place of employment” and that employers are free “to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.” Consequently, NH state law is clear that employers remain free to restrict the usage of marijuana in the workplace and to establish their own workplace policies on drugs.
Federal Laws
Despite marijuana being legalized in many states for medicinal purposes, it is important for employers to keep in mind that the use of marijuana remains illegal under federal law. Nothing in the NH legislation, or any of the state laws legalizing marijuana, alters the fact that marijuana remains a controlled substance under the federal Controlled Substances Act of 1970. This means that it remains a federal crime for individuals to possess, grow, manufacture, distribute or sell marijuana.
Nothing in these current or proposed state laws alters the federal Department of Transportation (DOT) rules requiring employers to test applicants and employees in safety-sensitive transportation positions, such as pilots, truck drivers, train engineers, ship captains, school bus drivers, and pipeline emergency response personnel, for marijuana and other controlled substances. Recently, the DOT issued a notice stating that it “want[ed] to make it perfectly clear that the state initiatives will have no bearing on the [DOT’s] regulated drug testing program.” Consequently, because marijuana remains illegal under federal law, courts around the country that have addressed the competing federal and state laws have consistently held that private employers are free to ban marijuana in the workplace regardless of the status of any state law to the contrary.
Medical Marijuana and the Workplace
There is no NH statute that specifically addresses private employers administering or requiring drug testing. Consequently, NH employers are free to test applicants and employees for drug use. Nothing in HB 573 limits an employer’s right to drug test or to refuse to hire an applicant, or discipline or terminate any employee, who tests positive, refuses to take a test, or tampers with test results, even where an employee can demonstrate compliance with the state medical marijuana law.
Finally, HB 573 makes it clear that NH employers are not required to accommodate the use of marijuana for medicinal purposes by an applicant or employee on the job. Court decisions interpreting an employer’s obligation to accommodate medicinal use of marijuana under the federal Americans with Disabilities Act (ADA) have been consistent in finding that the ADA does not require an accommodation for the illegal use of drugs. The ADA defines the illegal use of drugs by reference to federal law rather than state law, and as noted above, marijuana remains illegal under federal law. Employers should be mindful, however, that an individual’s underlying medical condition (such as cancer) may still be a covered disability under the ADA or state disability law. Employers should engage in a discussion with employees who are medical marijuana users to determinate whether a reasonable accommodation may be required other than the use of marijuana.
Now is a good time for employers to review their internal workplace policies about marijuana. If an employer wishes to forbid marijuana use in the workplace or while conducting business, the policy should expressly notify employees that the possession or use of drugs or controlled substances under federal, state or local law—whether for medical or recreational use—is prohibited and that disciplinary action will be taken against anyone who violates the policy. Employers can also choose whether to make a medical marijuana exception to their drug-testing policies, and that policy should be carefully set forth in writing.
Consistent application of drug-testing policies remains critical, as with all personnel policies. A written policy will eliminate any confusion caused by the competing federal and state laws. Providing clear direction from the outset of this new law may prevent employees from testing the policy by filing litigation, for which no employer wants to be the test-case.
O’Brien is chair of the Labor and Employment Practice Group at Devine, Millimet & Branch, PA in Manchester. She can be reached at 603-695-8631 or mobrien@devinemillimet.com.
Current Issue - May 2024