IDAHO EMPLOYMENT LAW LETTER Copyright 2004 M. Lee Smith Publishers & Printers

APRIL, 2004

SECTION: Volume 9, Issue 1

BYLINE: Moffatt Thomas Barrett Rock & Fields, Chtd., by John Sahlberg

Idaho may be one of the least likely states to legalize marijuana use for medicinal purposes, but two of its neighbors and at least seven other states have already done so. An Idaho employer with operations in any of those nine states or that has employees who live in those states but work in Idaho may be concerned about how such use affects its obligation to provide a drug-free and safe workplace.

Given a recent court decision in the Ninth U.S. Circuit Court of  Appeals, the circuit that covers Idaho (and seven of the nine states that have medical marijuana laws), and a recent Oregon arbitration decision, some Idaho employers may have reason to worry about the potential spillover into their business.

State medicinal marijuana laws

Oregon, Washington, California, Alaska, Arizona, Colorado, Hawaii, Maine, and Nevada all allow their residents to grow and use marijuana for medicinal purposes. The laws are very similar in their provisions: They permit the cultivation and use of marijuana for "medicinal" purposes and a process to authorize (not prescribe) use of the drug.

A more in-depth look at one law, the Oregon Marijuana Act of 1998

(OMA), is instructive on how these statutes generally work. Basically,  the OMA permits a person with a "valid medical marijuana registration  card" to use marijuana to treat "debilitating medical conditions." To  obtain a card, a person must have a "debilitating medical condition,"  which is defined as such conditions as Alzheimer's, wasting syndrome,  cancer, glaucoma, HIV/AIDS, seizures, nausea, severe pain, and/or  muscle spasms. The person needs to submit "valid, written  documentation" from a physician stating that he has been diagnosed with a debilitating condition and that the medical use of marijuana may mitigate either the symptoms or the effects. The Oregon Department of Human Services must act on the application within 30 days and can deny it only if the applicant didn't provide all the information or  the department determines that the information provided was falsified.  It isn't clear that the department has denied many, if any. 

In addition, the registered individual may be assisted in the  marijuana use by a "designated primary caregiver," an individual at  least 18 years of age who has significant responsibility for managing  the well-being of a person with a debilitating condition and who is  designated on the application or registration.

At last report, over 7,500 residents were registered to use marijuana  for medical purposes and another 4,600 caregivers were registered and  allowed to grow marijuana although their personal use of the drug isn't legal. The court decisions discussed below have created a lot of  interest in obtaining authorization for using marijuana, and the current backlog of applications in Oregon is estimated to be in the thousands.

Federal laws

There are a handful of federal laws that might come into play  concerning medical marijuana use. Under the Drug-Free Workplace Act of  1988 (41 USC Section 701 et seq.), federal contractors are required to operate a drug-free workplace. That law, however, is more about  reporting workplace violations than preventing them.

The federal law with teeth is the Controlled Substances Act (CSA)(21 U.S.C Section 801 et seq.). The CSA makes it a crime to manufacture, distribute, and/or possess marijuana and creates no exception for medical use. In fact, it notes that marijuana is a schedule I  controlled substance, which means that it has no currently accepted use in medical treatment in the United States. The federal government has taken the position that the CSA preempts state laws that allow marijuana use.

In Raich v. Ashcroft, the Ninth Circuit disagreed with the federal government and held essentially that the CSA can regulate only interstate or commercial use of marijuana. The court ruled in December 2003 that the Interstate Commerce Clause of the U.S. Constitution didn't give Congress the authority to prohibit the "noncommercial" growing and intrastate use of marijuana for medicinal purposes as recommended by a patient's physician in accordance with California state law. That decision continues the recent trend by federal courts of limiting Congress' ability to reach too far into state issues.

Using the U.S. Supreme Court's analysis in United States v. Morrison, which prohibited Congress from regulating domestic violence under the Violence Against Women Act, the Ninth Circuit previously held in United States v. McCoy that Congress can't extend the federal statutory prohibition against child pornography to cover items not mailed or crossing states lines or intended to be used for commercial or interstate purposes. The net result is that in seven of the nine states identified above, the medical marijuana laws are now presumptively valid.

Because state laws require an underlying medical condition, does that mean that the Americans with Disabilities Act (ADA) now will require employers to accommodate marijuana? Fortunately, the Equal Employment Opportunity Commission has taken the position that the use of marijuana, just like the use of any other illegal drug, disqualifies an individual from ADA protection. In short, the ADA doesn't provide protection for the illegal use of drugs, and which drugs are illegal is based on the federal CSA. But the result may not be the same under state disability laws.

Oregon state law

While what position the various state human rights commissions might take on marijuana in the workplace isn't yet clear, it's becoming clear in the state of Oregon. The Oregon Bureau of Labor and Industries (BOLI) is taking the position that "a job applicant or employee with a disability should not be disqualified from protection simply by virtue of medical use of marijuana, when it's properly authorized." The employer isn't required to accommodate an employee's use of marijuana in the workplace -- so using, selling, or possessing marijuana in the workplace can still be a basis for terminating an employee. But off-duty use and possession may no longer be a valid concern for employers. BOLI's position is that if the employee's underlying condition i" a qualifying disability and he's authorized to use marijuana, then an employer might be required to make a reasonable accommodation for that use.

What might an employer's required accommodation look like? Well, BOLI has cited an instance in which a person with cancer undergoes chemotherapy on a Monday. According to BOLI, the employer might be required to allow the individual to have Mondays and Tuesdays off to accommodate "the authorized use of the drug." And what happens if the employee is injured on Wednesday and tests positive on a drug test? BOLI states that the employer shouldn't pursue discipline when the evidence "suggests" that the employee is only making authorized use of the drug, isn't under the influence of the drug at work, and isn't posing an imminent safety risk while at work.

That's an interesting position for BOLI to take since there are no acceptable standards for determining, as there is for blood alcohol for DUIs, when an individual is under the influence of marijuana. Behavior alone is the only apparent basis for determining whether such a person is "under the influence." So the question may boil down to whether, based on observation, an employer can make a case that a person is either "under the influence" or an "imminent safety risk." Neither of those will be easy for an employer to prove.

A recent Oregon arbitration decision also found that a positive drug test wasn't enough for an employer to base discipline on. In Freightliner and Teamsters Local No. 305, an Oregon arbitrator found that Freightliner couldn't fire an employee who used marijuana as medicine to relieve chronic pain. In the case, the employee smoked one or two joints each day after work. While driving a 24,000-pound forklift in the warehouse area, he struck overhead pipes when attempting to remove a pallet of trash from a high perch. The ruptured pipes disrupted operations, but no one was injured. The employee wasn't disciplined for the accident but did test positive on a drug test taken several days later. Only when he was asked to take the drug test did the employee inform the company of his medical marijuana use despite the fact that he knew of the company's policy requiring notification of prescription drug use. The company fired the employee for being "impaired" at work based on the drug-test results.

The arbitrator found that requiring a drug test two days after the accident was a reasonable exercise of management discretion because the accident had been avoidable. The arbitrator focused on whether the employee was "under the influence" and found that the drug test showed only that he had engaged in drug use, which he admitted occurred off duty. The arbitrator determined that the law doesn't permit an employer to discipline an employee who uses marijuana because of a valid "prescription," did so on his own time, and reported to work in an "unimpaired" state. Consequently, the company didn't have just cause to discipline the employee solely for the drug-test results. The company would have had just cause had the employee been impaired and tested positive, the arbitrator noted.

The arbitrator also poked a hole in the company's requirement that employees who use prescription drugs notify it so that their fitness for work can be determined. Because the requirement failed to state when notification should occur, the fact that the employee was slow in reporting his medical use of marijuana wasn't found to be untimely or a basis for discipline.

Conclusion

So what should an Idaho employer do? Unfortunately, while the issues surrounding medical use of marijuana are working their way through the courts of the various states, there are currently more questions than answers. Each decision will likely provide you with further guidance, but there are a few lessons that can be learned from the decisions that have been reached.

For example, based on the Freightliner case, you may want to check whether your drug-testing policy requires reporting the use of prescription drugs. If so, should it be amended to include medical marijuana (marijuana use is authorized by a doctor but not prescribed) and require notification to you in advance of the individual doing work?

What's clear is that simply because an employee tests positive for marijuana on a drug test doesn't mean the employer can automatically take action, at least in the states that authorize medical use. If the employee produces an authorization card, for example, the use is probably excused. But the fact that an employee has a card doesn't always mean he has a disability. Not everyone issued a card necessarily has a condition that qualifies as a protected disability, so before deciding to "accommodate" medical marijuana use, you may want to require medical certification of the disability from the doctor.

On-premises use, possession, or transfer can still be a basis for discipline, but not everyone arrested in Oregon for possession of marijuana, for example, can be disciplined. If the individual is an authorized "caregiver" who grows marijuana for medical use, an off-site arrest may not be valid. Finally, what about an Idaho employer that has an Oregon resident working in Idaho who has authorization to use medical marijuana? While the answer to the last question may seem pretty straightforward, it's one of the many questions that haven't been answered. Until it is, a prudent employer is advised to contact legal counsel before taking action whenever medical marijuana may be an issue.

You can catch up on the latest court cases involving drug use in the subscribers' area of HRhero.com, the website for Idaho Employment Law Letter. Just log in and use the HR Answer Engine to search for articles from our 51 Employment Law Letters. Need help? Call customer service at (800) 274-6774.

The author is Boise attorney John Sahlberg -- director of labor and employment practices for Boise and a member of this newsletter's Editorial Review Board. You can reach him at johnsahlberg@bc.com. Copyright 2004 M.Lee Smith Publishers LLC