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April 25, 2016
By Tim Bonansinga J.D., SPHR – April 12, 2016 – First Article in a series on Employment and Marijuana Policy
Disclosure. From my standpoint as a recruiter and company attorney it is right to disclose my bias. I invite you to comment and disclose yours as well. Here is mine: I favor total legalization of drugs along the lines of Portugal’s policy. My opinion is based on a number of factors including that the U.S. spends at least 37 billion annually on drug enforcement budgets. The results of that investment of taxpayer funds is dismal. The primary beneficiaries of the Richard Nixon era drug policy currently in effect are:
- Employment of enforcement officials
- Pharmaceutical companies who benefit from the lifetime doses of their products, which are arguably far more dangerous than several drugs listed on Schedule 1 including marijuana
With that out of the way I invite counter-arguments as well as any other publishable statements.
The federal criminalization of marijuana extended to medical prescriptions is the cause of much unnecessary stress, unfairness and cost in the workplace. It’s really the power hungry tip of the tail wagging the dog.
I’d like to pose a fictional scenario that hopefully raises some discussion on practical issues of importance for business owners, insurance carriers, Human Resources and Risk Management. I’m going to put this scenario in context and expose the complex issues relating to marijuana prohibition in the workplace.
Case Study
Imagine if you will, Mary, the Director of Human Resources at “Magic Manufacturers”, sitting at her desk wondering what to do next.
Charlie, one of the best employees on “Magic Manufacturers” production team told Billy, one of his coworkers, he has a prescription for Medical Marijuana. Charlie said it is the only thing he has found to help with his progressively severe arthritic condition brought on by the trauma of his war wound. The prescription pills he had been taking space him out and have actually damaged his Kidneys and Liver. He told Billy that medical pot helps him sleep and lets him do some stretching exercises he couldn’t do with the pills. He does not use his prescription pot during work hours because although it does not dull him as much as the prescription pills he is still not sure whether it causes any performance issues.
Mary knows this is a potentially serious problem. Informal conversations in the workplace will spread like wildfire. It’s only a matter of time until everybody in the plant knows about Charlie. Charlie is one of the most respected people on the workforce and everybody thinks he is “good people”.
She looked at the employee handbook, which hasn’t been updated in at least ten years. The handbook only says “Magic Manufacture is a drug free workplace”. This is a small company trying to grow and maintain it’s hard won position in a competitive market. They just don’t have a lot of time and resources to spend on that kind of stuff.
But exactly what is expected of her now? Should she go to Billy and ask him to keep it quiet and then bring Charlie in to also swear him to secrecy? If that bond of secrecy could be guaranteed to hold that would be her preference. She is one who does not really think what people do on their own time is her concern.
But, she wonders are there laws that protect Charlie’s coworkers from having to work in environments that might make them feel unsafe? Every job on the production line is “safety sensitive.” The machines can cause injury unless the worker maintains a relatively high level of attention and awareness.
She remembers the fiasco that occurred when the crew found out one of the guys had a problem with his blood. They had to bring in a lot of doctors to review the possibility of spreading the disease if the guy got cut. Even though the doctors said the problem could not be transferred they had to buy the workers agreement to resign to keep the rest of the team from quitting.
Could the coworkers sue the company over the Charlie situation? Is a medical marijuana prescription covered by the ADA? Do they have to fire Charlie or is there an alternative? What is the owner going to think?
As Mary thinks about these issues, she remembers something else that could cause a potential problem. There was an accident report involving another employee on the same team not too long ago. He had received an injury while operating one of the production machines. He had not been paying attention. At the hospital his blood test showed a level of alcohol that would have been illegal to drive. He was actually drunk on the job or suffering from a severe hangover when he was injured. In that case the company had taken care of everything and did not punish him for violating anything. She knew Charlie could argue there was more reason to believe that guy was a safety hazard than he.
To further compound that problem is the fact that the drunk teammate was white, thirty eight years of age while Charlie is a black man 61 years of age. Mary is now wondering if they take job action against Charlie and did nothing with the co-worker, could Charlie sue the company for discrimination?
Mary also thinks about a conversation she had with some of her Human Resources friends about the recruiting problems everybody was having, especially among “millennials”. The Public Relations reaction among the candidate pool they were trying to recruit will seriously hurt staffing efforts. The most serious long-term problem for company was sourcing and recruiting quality, qualified people from the growing “millennial pool” of candidates. Firing a high performer like Charlie will almost certainly damage the company’s reputation.
Mary is developing a serious migraine. Her company is a small but growing operation. They have no in-house counsel. The lawyer they use from time to time is local and primarily involved in corporate, real estate and regulatory filings. She wonders what her options and responsibilities are. She remembers some management training when she was promoted from the line to Human Resources. It seemed like common sense stuff at the time and she didn’t pay a lot of attention. But maybe she should review the material now. She knows she better be prepared to give some good advice when she talks to the Owner of the company.
Discussion
There are many potential issues raised by the “Mary Scenario”. I’m hoping for some comments (pro or con) from readers to address in further articles in this series.
Following are some of the things I will cover in this first article:
- I used the phrase “Ipse Dixit” in the title. Do you want to know what an “Ipse Dixit” is?
- There is reliable information that change to the scheduling status of marijuana is finally going to change in a few months? If the change results in significant change in the criminalization of marijuana, is considering an alternative to termination the right thing to do?
- The case “EEOC vs The Pines of Clarkston” said the ADA does not cover medical marijuana. But the EEOC came out with the position opposing termination of the employee who was using legally prescribed marijuana. Do you believe this presents an argument against automatic termination?
“Ipse Dixit”
Well, it’s Latin for something very close to “It’s true just because I say it is.” And frankly, in my opinion, if you ever do legislative history research on this prohibition of marijuana, “Ipse Dixit” has to be the only basis for which Marijuana remains in the same law enforcement category as Heroin and other Schedule 1 dangerous drugs without medical value. How do you feel about “Ipse Dixit” governance rules by the federals?
Democratic Sens. Jeffrey Merkley (Ore.), Ron Wyden (Ore.), Barbara Mikulski (Md.), Edward Markey (Mass.), Barbara Boxer (Calif.), Cory Booker (N.J.) and Kirsten Gillibrand (N.Y.) are co-sponsors of a bill introduced in 2015 designed to drastically reduce the federal government’s ability to enforce Federal Criminal law on state-legal medical marijuana programs.
The legislation is entitled The compassionate Access, Research Expansion and Respect States (CARERS) Act, introduced by Sens. Cory Booker (D-N.J.), Rand Paul (R-Ky.) and Kirsten Gillibrand (D-N.Y.). It seeks to drastically reduce the federal government’s ability to crack down on state legal medical marijuana programs and encourage more research into the plant through several major changes in federal law.
“This bill that we are introducing seeks to right decades of wrong,” Booker said.
“Doctors and patients deserve federal laws that are fair and compassionate, and states should be able to set their own medical marijuana policies without federal interference. It is a common-sense bill to make medical marijuana accessible to the millions of Americans who could benefit from it.”
Booker added, “We join together to say: Enough is enough.”
The argument for maintaining Schedule 1 criminalization of marijuana was stated by Senator Jeff Sessions.
I got a laugh watching this: “Good People Don’t Smoke Marijuana”.
It’s going to be tough to counter that logic.
Who really has the integrity and the “Goodness” on their side? That remains a matter of debate.
Today, a growing number of states legalize the prescription of Marijuana even though the federal government’s Controlled Substances Act categorizes it as a “dangerous drug” with “no medical value”. They are also risking being categorized as “Bad People”.
As a person whose profession is tied, in part, to legal risk management in staffing and recruiting, I have a serious problem being forced to act as a tool for execution of what I truly consider is an idiotic policy. In almost every other context if a doctor prescribes a prescription for a problem, we as employers should make reasonable accommodations rather than live with threats of prosecution or be forced to terminate someone’s employment, no matter how qualified or stellar their performance. Even the EEOC was on my side of the argument in the case of EEOC v The Pines of Clarkston, an important case in this context, which I discuss below.
Nevertheless, case after case warns us that even if your employee has a legal prescription to use medical marijuana a company may terminate him because even though he is a legal user under a state law, marijuana remains a federal violation. Federal law is paramount.
But what does the paramount federal law paramount in this context?
It stretches the arbitrary power of the federal government to absurd lengths to say such a thing. The motivation for saying things like that are political power. The case law and the Schedule 1 status of Marijuana are ridiculous in my opinion! I hope they haven’t taken away the first amendment yet. Although there was some consideration to block Canadian newspapers ads for legal marijuana. Indeed, enough is enough.
Independent prosecutors acting under their grace of discretion and virtually immunity from any action need to be drawn in. Charles Breyer, a U.S. District Judge from Northern California, admonished the DEA with a ruling critical of the agency for its systematical harassment of the medical marijuana community. Citing last year’s Rohrabacher-Farr amendment, Judge Breyer noted in his brief that it prevents the use of any government funds from being utilized for such actions.
Representing the first ruling of its kind by a federal judge, this decision safeguards all state marijuana laws. Preventing the DOJ (Department of Justice) from spending any of our tax dollars to bust legal dispensaries or MMJ patients in any of the 23 states that have voter approved medical marijuana programs.
According to Time,
“Judge Charles Breyer of the U.S. district court in northern California disagreed with a DEA memo, writing in his decision that the department’s interpretation of the law “defies language and logic” and is “at odds with fundamental notions of the rule of law.”
That’s enough!
Change is in the Air?
Tom Angell, founder of “Marijuana Majority”, a marijuana reform group says change (to the Schedule 1 status of marijuana) is indeed in the air.
Although the federal will not say what changes they will recommend and the extent of that change is subject to speculation, the situation should be a serious warning for employers contemplating termination decisions based on merely testing positive for marijuana use pursuant to prescription.
The DEA is responding to public pressure to finally make a decision on pending petitions to reclassify marijuana under federal law. Apparently it will happen this year and maybe within the next three months. The timeline was revealed in a new letter to several U.S. senators signed by DEA Acting Administrator Chuck Rosenberg, along with the heads of the White House Office of National Drug Control Policy (ONDCP) and the U.S. Department of Health and Human Services (HHS).
The letter was sent to Democratic Sens. Jeffrey Merkley (Ore.), Ron Wyden (Ore.), Barbara Mikulski (Md.), Edward Markey (Mass.), Barbara Boxer (Calif.), Cory Booker (N.J.) and Kirsten Gillibrand (N.Y.). Most of those senators are co-sponsors of The compassionate Access, Research Expansion and Respect States (CARERS) Act introduced in 2015.
If you were confronting the same facts set out in Mary’s scenario knowing that some significant change is coming soon would you feel justified in looking for reasonable alternatives to employment termination?
ADA and Other Problems
The ADA does not currently appear to protect marijuana use. However, and this is potentially important, illegal drug use does NOT include use of drugs “taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal law.”
So, have your lawyer and your risk manager consider carefully, does that exclusion include the use of medical marijuana when prescribed by a licensed health care professional?
Who really knows at this point in time? Plaintiff’s lawyers representing terminated employees will surely say they know the answer. When Congress enacted the ADA in 1990, no one had heard of medical marijuana. Interpretation will be up to the courts.
I also do not believe an employer’s zero tolerance policy is risk free. Your ex-employee can and will argue that your termination was a pretext and in retaliation for his taking prescription marijuana, or was an attempt to interfere with his/her use of statutory protections such as FMLA leave.
If a judge or jury believes that the existence of a medical condition was your true motivation, they may interpret your actions as interference or retaliation. For example, they are illegal under the FMLA if you were taking prescription marijuana while on leave. Your terminated employee could be awarded damages, attorney fees, and reinstatement.
In EEOC v The Pines of Clarkston the terminated employee was awarded significant damages after being terminated for testing positive for medical marijuana. The EEOC argued that the terminated employee was highly qualified for the position. This case raises an interesting conflict between the DEA and the EEOC regarding the use of prescription marijuana.
The courts are only starting to deal with this ugly can of worms, and it is not that far-fetched to realize that some court will find that the ADA gives some protection to medical marijuana users in states where the use is legal. As usual the federal burden trickles down hardest on us, the smaller employers and service providers.
Conclusion
Currently, if the employer has a “zero tolerance” drug free workplace policy most general practice lawyers say an employer can enforce its drug-free workplace against off duty marijuana use, because marijuana use is still illegal under federal law. In other words, even if the employee is not high or impaired, if he/she tests positive for recent marijuana use, the employer could terminate the employee for failing to comply with that policy.
But, you should ask whether a less damaging alternative than termination is provided for in your policy, and if not considered expressly as “for cause,” whether a more appropriate job action is the right thing to do under the factual circumstances.
My advice is not to make a decision to terminate before you carefully consider your policy, the facts, and your best alternative options.
One potential alternative might be an agreement with your employee to never use prescribed marijuana on the job or within certain number of hours prior to being on the job. This would go along along with an understanding to submit to “a fitness for duty test” at the start of the employment shift either for cause or randomly. Safety and performance after all are an employer’s main concerns are they not?
I would actually recommend “fitness for duty” tests across the board for all employees.
Further, my opinion is that the U.S. should do something similar to Portugal and legalize all drugs. That country has experienced no problems. Then…
- Addiction issues should be considered a medical problem rather than a criminal issue.
- To protect the legitimate workplace safety and performance concerns all employees should be subject to a for-cause or random fitness for duty test. Many drugs not on Schedule 1, the after-effects of alcohol, and other things such as lack of sleep can be far more dangerous.
No employer’s actions will be risk free. The weightiest opinions for employer decision-making likely will be from our insurance carriers after they conduct human resources policy audits.
Public opinion on the use of marijuana is changing rapidly. Any terminated employee will argue that the termination was in retaliation for his medical condition rather than his legal use under state law of prescription marijuana.
A smaller employer puts itself at severe risk when it puts itself at the mercy of public opinion. The damage could be large if a judge or jury believed that the facts of the specific case show the employer’s true motivation was interference with other rights and/or retaliation. The terminated employee could be awarded damages, attorney fees, and reinstatement.
This is a risky business. The courts are only starting to deal with this can of worms, and it is not that far-fetched to realize that some court will find that the ADA gives some protection to medical marijuana users in states where the use is legal
So, what’s your guess?
Tim Bonansinga J.D., SPHR. Tim Bonansinga is co-owner of Inter-connect Employment Services LLC. He specializes in organizational development, employment law, including job analysis, sourcing, recruiting and matching employees to the right jobs. Prior to that he was General Counsel for an international telecommunications company.
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