LEGAL: States are going to pot: medical marijuana laws pose increased risks for unwary employers

By Lillian Hartgrove, State Board of Education Chairman
Special to the UCBJ

Legislation allowing marijuana use is sweeping across America.  And it may have unexpected consequences for employers. Currently 33 states plus the District of Columbia have legalized medical use of marijuana.  These states typically require patients to be certified by a physician and to register with the state.  Some states provide workplace protections to employees who lawfully use marijuana for medicinal purposes.  

In addition, 10 states and the District of Columbia have approved recreational use of marijuana for adults who are 21 years and older.  These laws may even allow individuals to grow their own marijuana.  To date, none of these statutes provides workplace accommodations.  

Federal law still prohibits the distribution and possession of marijuana, regardless of its use. Notwithstanding federal law, the Obama administration issued a memo directing federal prosecutors not to target adults who grow and use marijuana in compliance with state laws.  Prosecutors, though, were encouraged to prevent marijuana sales to minors.  Although the Trump administration rescinded the memo, states continue to pass laws legalizing marijuana use.

Chance v. Kraft Heinz Foods Company

The conflicting laws between the federal and state governments, and the lack of uniformity in these laws, creates potential traps for the unwary employer.  The case of Chance v. Kraft Heinz Foods Company demonstrates this problem.

Kraft Heinz Foods Company employed Jeremiah Chance as a yard equipment operator.  Chance suffered from numerous medical issues including various back problems.  Because of his health issues, he obtained a valid medical-marijuana card in 2016 pursuant to Delaware’s Medical Marijuana Act.  He also took leaves of absence on several occasions under the Family and Medical Leave Act and used short-term disability benefits. 

As a yard equipment operator, Chance operated a shuttle wagon on the company’s railroad tracks.  Chance derailed a shuttle wagon.  Because of the incident and presumably pursuant to company policy, management requested that Chance take a drug test.  The test was inconclusive which caused the company to request a second drug test.  Three days after the first drug test, the second test was administered.  Four days later, a company medical review officer informed Chance that he had tested positive for marijuana use.  Chance advised the medical review officer that he was authorized to use medical marijuana pursuant to Delaware’s Medical Marijuana Act and provided the medical review officer with a copy of his state-issued card.  Approximately 10 days later, the company terminated Chance for failing the drug test. 

Thereafter, Chance filed a discrimination charge with the Delaware Department of Labor Office of Anti-Discrimination and with the federal Equal Employment Opportunity Commission.  Both government agencies issued Chance a right-to-sue letter. Accordingly, Chance filed suit within 90 days.  He sued Kraft Heinz Foods Company for violation of Delaware’s Medical Marijuana Act among other causes of action.  Unlike the medical marijuana statutes of most other states, the Delaware act prohibits employers from discriminating against employees who use medical marijuana as authorized by the Act.

Kraft filed a motion to dismiss the claim under the Delaware Medical Marijuana Act.  A motion to dismiss challenges a cause of action on legal grounds assuming that the allegations of the complaint are true.  In this case, Kraft asserted that the Medical Marijuana Act claim failed because it is preempted by federal law: specifically, the Controlled Substances Act.  Pursuant to the Supremacy Clause of the U.S. Constitution, federal laws override state laws.  So Kraft argued that Delaware’s Medical Marijuana Act improperly authorized conduct that was prohibited by federal law, i.e., by authorizing the use of marijuana and requiring employers to accommodate that use.  In rebuttal, Chance argued that Kraft’s analysis was overbroad and that the anti-discrimination provisions of the state statute do not violate federal law.  

The Court’s Analysis

Federal law regulates the use and possession of drugs, including marijuana.  These drugs are called “controlled substances.”  The law states that it is unlawful to manufacture, distribute, dispense, or possess controlled substances except as provided by the Controlled Substances Act.  Under the Controlled Substances Act, marijuana is a schedule 1 substance and the act does not allow any exceptions, including for the medical use of marijuana.

In contrast, the court acknowledged that the Delaware statute provides “for the distribution, possession, and use of marijuana for medical purposes.”  The state act further prohibits employers from discriminating against employees in hiring, firing, or any other term or condition of employment who are card-carrying users of medical marijuana or card-carrying users of medical marijuana who test positive for marijuana use.  But if the employee possesses or uses marijuana or is impaired while on the employer’s premises or during the employees scheduled shift, employers may discipline employees.  

The court acknowledged that upon a cursory review the Delaware act appears to be in direct conflict with federal law.  But the court reasoned that such a view is overbroad, because the only part of the statute at issue in the Chance case was the anti-discrimination provision.  And the court was not called upon to review the statute as a whole.  The court reasoned that in its preemption analysis, it need only consider the extent to which the state law contradicts federal law and that the court should not invalidate the state statute any more than necessary to resolve the pending case. So, the court limited its review of the Delaware act solely to the provision regarding employment discrimination.  

The court further explained that although federal law does not authorize the medical use of marijuana, it does not prohibit the employment of marijuana users, and the federal statute does not attempt to regulate employment matters. The court thus concluded that the anti-discrimination provisions of Delaware’s Medical Marijuana Act are not in conflict with federal law and do not interfere with the goals of Congress. Therefore, the court denied Kraft’s motion to dismiss Chance’s discrimination claim.  The case will proceed to discovery, allowing the parties to learn the facts and analyze the strengths and weaknesses of their positions, and ultimately to decide whether to file dispositive motions, settle the case, or proceed to trial.  

Practical Tips

Notwithstanding the holding of the Chance case, employers should not immediately toss out their drug policies.

  1.  Know the Law

Thirty-three states plus the District of Columbia have passed laws permitting medical marijuana use and, in some jurisdictions, recreational use. The laws are not uniform and, in some instances, like the Delaware act, give rise to employer liability for discriminating against card-carrying marijuana users.  And in states like Tennessee, marijuana use is not authorized. Thus, employers must be aware of the laws governing marijuana use in the jurisdictions in which they have employees.  And they must ensure that their policies do not violate those laws.  

  • Consider Focusing Your Policies on Impairment

Even though the majority of states have passed medical marijuana laws, none of the laws prohibit an employer’s right to discipline an employee for being impaired while at work.  Unlike alcohol, a positive drug test for marijuana does not necessarily mean that the employee was impaired at the time of the test.  Evidence of marijuana use remains in the human body long after its effects have dissipated.  So instead of having a policy that disciplines employees for a positive marijuana drug test, consider modifying your policy to discipline employees who are impaired while at work.  

A drug test confirming marijuana use should only be one factor in determining whether an employee is impaired.  Employers should rely on common short-term symptoms of marijuana use as evidence of impairment: “panic, anxiety, poor muscle and limb coordination, delayed reaction times and abilities, an initial liveliness, increased heart rate, distorted senses, [and] red eyes.”  If an employee manifests common symptoms of marijuana use, then the employer may use a drug test to confirm the employee’s impairment.

By being aware of the applicable medical marijuana laws and amending policies to focus on impairment, employers can avoid a new breed of discrimination claims.  

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