Oregon could learn from other states with employee protections for off-work medical marijuana use

Authored By: Megan Vaniman – Attorney

Megan is an experienced employment law attorney and corporate advisor. She can frequently be found in state and federal court where she has successfully defended Oregon and Washington employers. From discovery through trial, Megan provides her clients with skillful guidance throughout the legal process. Her practice is focused on employment advising, employment and labor litigation, and business litigation.

She possesses particular expertise in Oregon Bureau of Labor and Industries (BOLI) matters involving wage claims, harassment, and discrimination. Megan also represents businesses and business owners in disputes related to ownership and operations.

Before joining Harris Bricken, Megan worked at a leading Portland law firm. She is an intrepid advisor and litigator. Always prepared to go the distance for her clients, Megan has successfully litigated a range of cases related to emerging and highly regulated industries that often involve unsettled areas of law.

 

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In January 2017 Oregon Senator Floyd Prozanski introduced legislation that would prevent employers in Oregon from terminating employees for off work marijuana use.³ The bill lacked initial support and failed to gain support after it was amended to protect only medical marijuana patients. Many employers were concerned about compliance with the state law and compliance with federal laws requiring a drug free workplace. The bill was pulled before it was submitted to the full senate.⁴ As it currently stands, Oregon employers may terminate employees for off work marijuana use under Emerald Steel Fabricators.

Oregon may be falling behind the general trend of normalization of marijuana use. Several states have passed legislation banning employers from terminating employees for off work marijuana use.

States with Legislation Protecting Employees from Termination for Off-Work Marijuana Use

Multiple states have legislation addressing the interplay between state-laws banning termination for off-work marijuana use and the federal requirements for drug-free workplaces. Arizona, Delaware, Illinois, and Maine each have legislation banning employers from penalizing or refusing to hire a person because of that person’s status as a medical marijuana card holder.⁵ Each state’s legislation carves out exceptions for employers who would lose a monetary or licensing related benefit under federal law or federal regulations.⁶

Arizona and Delaware’s legislation prohibits termination or penalization of an employee for status as a medical marijuana cardholder or a cardholder’s positive drug test.⁷ Whereas, Illinois’s and Maine’s legislation prohibits penalization for a person’s status as a registered medical marijuana card holder with no mention of positive drug tests.⁸ It is interesting to note that recreational use is still illegal in Arizona, Delaware and Illinois and Illinois’s medical marijuana statute is surprisingly restrictive.⁹

Connecticut, Minnesota, Nevada, New York, and Rhode Island also have legislation protecting medical marijuana users.¹⁰ Minnesota’s law prohibits discrimination against a person in hiring, termination or any term or condition of employment based on a positive drug test for a medical marijuana card holder.¹¹ New York’s law is much broader and similar to Illinois’s and Maine’s legislation only prohibiting termination and penalty against certified medical marijuana patients.

Nevada’s law is probably the broadest among the states and does not specifically prohibit employers from terminating employee’s for off-work marijuana use but does state “the employer must attempt to make reasonable accommodations for the medical needs of an employee who legally engages in the medical use of marijuana.”¹²

Rhode Island has very broad language. The statute prohibits employers from refusing to employ or otherwise penalize a person solely for his or her status as a cardholder.¹³

Massachusetts is the most recent state to protect employee’s off-work medical marijuana use. The Massachusetts Act for the Humanitarian Medical Use of Marijuana became effective on January 1, 2013. The statute and implementing regulations did not provide much guidance for employers regarding off-work medical marijuana use. The statute stated “nothing in this law requires an accommodation of any on-site medical use of marijuana in any place of employment.”¹⁴ In July 2017, the Supreme Court of Massachusetts held that employers cannot terminate employees for off-work use of medical marijuana.¹⁵ The Court specifically found that employers must engage in the interactive process under the ADA with medical marijuana users and may only terminate employees if accommodating the employee’s marijuana use constitutes an undue hardship.

States Allowing Employers to Terminate Employees for Off-Work Marijuana Use

The east coast and some of the mid-west are well on their way to protecting employee’s off-work marijuana use. The west coast lags behind. Several states on the west coast specifically allow employers to terminate employees for off-work use of medical marijuana.

Alaska, California, Colorado, Georgia, Michigan, Montana, New Hampshire, New Jersey, and Washington all have broad legislation that allow employers to terminate employee’s for off-work marijuana use.¹⁶ California and Colorado both have significant cases on their statutes. The California Supreme Court specifically held employers may terminate employees for off-work medical marijuana use.¹⁷ Similarly, in Colorado, the Supreme Court determined discharging an employee for off-work medical marijuana use is lawful and medical marijuana use is not a lawful activity protected by Colorado’s lawful activity statute.¹⁸

The Sixth Circuit took on Michigan’s statute in Casias v. Wal-Mart.¹⁹ The Court held private employers were not prohibited from disciplining employees as a result of the employee’s medical marijuana use.

Washington’s statute specifically states employers are not required to accommodate any “on-site medical use of marijuana in any place of employment.”²⁰ The Supreme Court of Washington took the statute one step further and held “the Washington State Medical Use of Marijuana act does not regulate a private employer’s conduct nor does it protect an employee from being discharged due to authorized medical marijuana use.”²¹

New Mexico recently had a state and a federal court case that held employers can fire employees for off-work medical marijuana use.²² Oddly, however, the New Mexico Court of Appeals held that employers have to reimburse injured workers for medical marijuana under the state Workers’ Compensation Act.²³

Arkansas legalized medical marijuana in 2016. In 2017, the legislature added amendments to the law that are rather contradictory and confusing. The amendments prohibit an employer from discriminating against an applicant or employee in hiring or termination because of the applicant or employee’s status as a medical marijuana card holder. The amendments also allow an employer to establish and implement a drug free workplace policy including a drug testing program and taking action against an employee with respect to the drug free policy.²⁴ Some analysis on the amendments say the amendments protect employee’s right where as other analysis state the employer is protected. It is likely the law will remain unclear until it is challenged in court.

Many other states have legislation that do not specifically address the issue of whether an employer can lawfully discharge an employee for off-work medical marijuana use but do have legislation that heavily suggests it would be a lawful employment action. Washington DC, Hawaii, Maryland, and Vermont all have statutes stating a patient with a medical marijuana card may still face criminal prosecution or civil penalties for marijuana use and possession at the patient’s place of employment.²⁵

Overall, there is a slow and steady trend to legalize recreational marijuana use. Along with that trend, and somewhat in-front of it, are states that are passing legislation protecting medical marijuana patients from adverse employment actions for off-work use. Oregon sits behind its east-coast brethren. A somewhat surprising finding considering Oregon’s history of being on the forefront of marijuana policy. Oregon will need to try again to pass legislation protecting employee off-work marijuana use. Oregon has plenty of examples from other states to craft legislation that protects employers, employees, and federal considerations.