Over 30 states and the District of Columbia have legislation providing citizens access to marijuana. Some states have “de-criminalized” the substance while others have legalized it for medicinal or even recreational purposes.  No matter the form, these laws contradict the federal Controlled Substance Act (“CSA”) under which marijuana is categorized as an illegal controlled substance.  The conflict between states’ laws and federal law regarding marijuana presents a confusing crossroad for employers. 

The confusion has been compounded by varying court opinions in different states addressing whether employees may receive protection from adverse employment actions based upon their state-certified marijuana use.

Starting in 2015, an argument could be made that the need to accommodate off-site use of marijuana was not required, specifically for purposes of zero tolerance drug policies. In 2015, the Supreme Court of Colorado ruled that a quadriplegic employee of Dish Network was lawfully terminated pursuant to a zero tolerance drug policy following his positive test for marijuana.  The court rejected an argument by the employee that his use of marijuana was lawful under Colorado’s marijuana law.  The court held that marijuana’s illegal status under federal law precluded it from being consider a “lawful” activity under Colorado law.

Contrary to the decision in Colorado, in 2017, a string of cases were decided in favor of employees. In Rhode Island, the state’s highest court issued an opinion stating that the CSA’s purpose of thwarting the illegal importation and trafficking of drugs was “quite distant from the realm of employment and anti-discrimination law.”  It found that the CSA did not trump the state’s medical marijuana law.  In Connecticut, a United States District Court ruled in favor of an employee also finding that the CSA did not preempt Connecticut’s medical marijuana statute, including provisions prohibiting discrimination against certified marijuana users.  Then, a United States District Court in Massachusetts found that under Massachusetts state law the off-site use of marijuana during non-working hours may constitute a “reasonable accommodation.”  The seemingly recent trend in favor of employees appeared to be diluting the 2015 Colorado decision.

The latest twist occurred on August 10, 2018, when the United States District Court for New Jersey found in favor an employer, ruling that the employer was not required to waive a drug test for marijuana as a condition of continued employment. In Cotto v. Ardagh Glass Packing, Inc., a federal judge dismissed an employee’s claims under the New Jersey Law Against Discrimination (“LAD”) and the New Jersey Compassionate Use Medical Marijuana Act (the “CUMMA”).  The case stemmed from a work accident in 2016 where an employee hit his head on a forklift.  Following the accident, the employee was required to pass a drug test as a condition of returning to work.  The employee submitted to the drug test where he tested positively for a prescribed painkiller and marijuana.  The employee was advised that he would not be permitted to return to work so long as he tested positive for marijuana.  Subsequently, the employee provided his employer a medical marijuana certification card issued under New Jersey law and supporting documents from his physician.  Despite his certified use, the employer refused to permit the employee return to work if he could not pass a drug test for marijuana.  The employee filed a lawsuit.  New Jersey’s CUMMA does not require New Jersey employers to permit the use of marijuana in the workplace.  In his opinion on the matter, the judge analyzed New Jersey’s LAD and CUMMA, and he ultimately found that New Jersey law does not require private employers to waive drug tests for users of medical marijuana.

States’ highest courts and United States District Court opinions regarding employee protections for marijuana users vary from jurisdiction to jurisdiction. Absent federal legislation or a ruling from the United States Supreme Court, employee protections for marijuana use will remain in a state of flux.  States currently implementing or preparing to implement marijuana programs, including Ohio, Pennsylvania, and West Virginia, appear to be primed for a “test case” either in federal court or state court to determine employer rights and obligations under marijuana laws.  Employers should consult with legal counsel before taking adverse employment action against employees using marijuana pursuant to their state’s law.