April 15, 2014
This week’s (fictional) mailbag question comes to us from C.F. Ohno, who wears the accountant, human resources manager, and several other hats for a local office supply company. C.F. has a medical marijuana and drug policy question involving an employee named Mary Jane. (Folks, you can’t make this stuff up!) Here is his question.
“My employer, Chair Crazy, is a local office supply company. We have some employees on the inventory side and others on the delivery side. All of our employees are subject to a ‘zero tolerance’ drug and alcohol policy that is included in the employee handbook and in training every other year. Although I am an accountant by trade, I also deal with personnel issues. Yesterday afternoon, my bookkeeping assistant, Mary Jane, approached me. She was nervous and quickly had me confused.
Mary Jane said that her sister, Alice, who drives a small truck and delivers chairs for us, has been staying at her house for the past week while the plumbing in Alice’s home is being repaired. Apparently, yesterday Alice had packed their lunches and Mary Jane was concerned because Alice had packed brownies for dessert. I was busy and said I did not care to hear about a lunch squabble between sisters; maybe I was a little short with her. Mary Jane shushed me and said I did not understand. She said that since her husband’s eye surgery late last year he has been in a fair amount of pain, which led him to obtain an Oregon medical marijuana card. Further, Mary Jane said that she did not tell Alice about this because she and her husband are a bit embarrassed. The bottom line is that the brownies Alice packed in their lunches are marijuana brownies. Mary Jane said she did not eat hers because she knew what it was; however, she assumed that Alice ate hers and was out driving around in a Chair Crazy truck high as a kite.
After I got over my shock, I jumped into action. I had Mary Jane call Alice and ask if she had eaten her brownie. Alice said she had eaten two of them. I had Mary Jane tell Alice to stay put (ironically, she was at the police department offices). We drove there in Mary Jane’s car and collected Alice; I drove the truck back to Chair Crazy. Because both were upset, I sent them home, with pay, and I told them I would call them today. What do I do? Mary Jane’s husband has a medical marijuana card and Alice got high by accident.”
The Bullard Edge's Response:
That is an amazing situation, C.F. I will try to address the issues you raise.
First, as you know, over the past two decades, numerous states (including Oregon, Washington and California) have enacted medical marijuana laws. However, the state supreme courts in Oregon, Washington and California have now held that the state laws do not require that employers accommodate the medical use of marijuana or engage in the interactive process regarding potential accommodations.
Second, I note that Washington and Colorado now have “personal use” laws (no medical need required for marijuana use). These new laws have caused employers in those states to worry that they may have to permit marijuana use or modify their drug policies. However, because neither law includes any express or implied job protections for applicants or employees there is no reason to believe that employers must permit on the job marijuana use or modify their drug policies.
Third, focusing on your two employees, here is what I see. Company policy prohibits the use or possession of marijuana in the workplace or on the job. Mary Jane brought marijuana into the workplace and Alice used marijuana on the job. For both of them, based on what you have said, this appears to have been inadvertent. Although you could attribute a technical violation to either, I believe that there would be risk in discipline. An enforcement agency, like BOLI or the EEOC, could conclude that any discipline amounts to disability discrimination (adverse action against an employee because of a relationship with an individual with a disability - Mary Jane’s husband).
Fourth, in states allowing medical or personal marijuana use, the number of state residents using marijuana will likely increase, which in turn (a) will mean an increase in the number of marijuana users seeking employment, which (b) will likely lead to an increase in the number of applicants/employees testing positive for marijuana use.
Fifth, approximately two years ago I predicted that rising numbers of disciplinary actions resulting from violations of workplace drug policies may lead to greater legislative or judicial pressure to adjust the law in a manner that provides some form of protection for the lawful recreational and/or medical use of marijuana. In fact, things that are happening in other states may eventually lead to changes locally. For example, in Illinois the Compassionate Use of Medical Cannabis Pilot Program Act went into effect on January 1, 2014. While the Act does not protect an employee who works while impaired, it does include a non-discrimination provision that prohibits an employer from penalizing an applicant or employee “solely for his or her status as a registered qualifying patient or a registered designated caregiver” unless failing to do so would cause the employer to violate federal law or lose federal funding (e.g., for employers subject to DOT regulations or the Drug-Free Workplace Act).
This is a rapidly evolving area, C.F. I suggest that your company review its current policy to insure it is in compliance with the law and pay close attention to any developments. Best regards,
The Bullard Edge
Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it. Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be.
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