Within the last few years, 28 states and the District of Columbia have legalized marijuana in varying degrees – for recreational and/or medical use – and many others are showing signs of considering legalization to some degree. According to a 2015 National Survey on Drug Use and Health, marijuana is the most commonly used illicit drug in America, with approximately 22 million people reporting to have used it within the last month. What’s more, only 27% of Americans over the age of 12 see a great risk in using marijuana once per month.

The increasing public debate about legalizing or loosening restrictions for medicinal and recreational use of marijuana have been fueled by insights from people who suffer from chronic medical conditions. Medical marijuana and Cannabidiol (CBD) oil have been effective in relieving severe seizure disorders, epileptic conditions, Parkinson’s disease, MS, cancer, glaucoma, nausea and vomiting, and more, according to the Institute of Medicine. A 2016 University of Michigan study showed a 64% reduction in the use of opioid painkillers among patients who used medical marijuana to treat chronic pain, leaving many to argue that marijuana could be used as a safer alternative to opioids. In many cases, the Institute of Medicine has reported that medical cannabis provides users with a much-needed source of relief and the ability to resume normal functions.

Medical Marijuana in Wisconsin

On February 8, 2017, the Wisconsin Senate overwhelmingly passed Senate Bill 10 to allow individuals to possess and use CBD oil, with a doctor’s certification that it is being used for a qualifying medical condition. The Wisconsin Assembly unanimously passed Senate Bill 10 on March 7, 2017, and Governor Walker signed the Bill into law on April 17, 2017.

General Issues and Concerns

Whether a state has only legalized CBD oil, marijuana for medical use only, and/or marijuana for recreational use, legalization raises a number of questions and concerns for employers across the country who strive to maintain productivity, avoid absenteeism, ensure workplace safety and protect employee rights.

The most important thing for employers to note is, although the word “legalized” is commonly used when discussing state marijuana laws, marijuana is not actually “legal” anywhere. This is because, regardless of state law, marijuana is still designated as a Schedule I substance under the federal Controlled Substances Act (CSA). The Drug Enforcement Agency has clarified that Schedule I drugs have a high potential for abuse, no currently accepted medical treatment use in the U.S., and a lack of accepted safety for use of the substance under medical supervision. This means that marijuana – its use, cultivation, transportation, sale, possession and all other related activities – remains unequivocally illegal under federal law. State marijuana laws therefore only protect individuals from criminal prosecution by state authorities; they do not actually “legalize” marijuana.

In addition, all federal grant recipients and federal contractors are required by The Drug Free Workplace Act (DFWA) to adopt a zero-tolerance policy at their workplaces and certify to the federal government that their workplaces are drug free. For employers that are not required to comply with the DFWA, they can still institute a zero-tolerance drug policy for their workers.

Drug Testing

It’s essential for all employers to comply with both state and federal laws when it comes to drug testing in the workplace. One of the complexities when testing for marijuana is that a urinalysis can only detect THC metabolites, which can remain in a user’s body much longer than alcohol, sometimes for weeks or months after the marijuana was actually consumed. This means that an individual may not be under the influence of marijuana at the time of testing, and may not have even ingested marijuana for weeks, but could still test positive for the substance. Furthermore, these tests cannot indicate impairment, they can only indicate the presence of the THC metabolite. This presents a challenge for workplace drug testing policies and their enforcement.

Americans with Disabilities Act (ADA) or State Law Counterpart Claims

The ADA prohibits employers from discriminating against qualified individuals on the basis of disability. It also states that a qualified individual with a disability shall not cover any employee or applicant who is currently engaging in the use of illegal drugs, when the employer acts on the basis of such use, and that employers may require that employees behave in conformity with The Drug Free Workplace Act. The biggest issue facing employers regarding the ADA is whether the Act itself or its state law counterparts require employers to accommodate employees’ legal use of medical marijuana to treat serious medical conditions. Some states have laws which contain either anti-discrimination or reasonable accommodations provisions for registered marijuana users, but some states have remained silent on this issue. In those cases, courts have generally determined that employers are not required to accommodate medical marijuana use under the ADA or its state counterparts. However, in July 2017, the Massachusetts Supreme Court rendered a novel decision taking the opposite view. Whether there is a duty to accommodate employees or not, employers must be careful to ensure any adverse employment decisions are made based on the individual’s use of marijuana rather than based on the underlying medical condition itself.

Unemployment Insurance Benefits

Another employment law issue facing many states is whether or not an employee who has been discharged based on a positive drug test for marijuana metabolites is entitled to unemployment benefits. In the state of Michigan, three unemployment compensation claimants were denied benefits after being discharged for failing a drug test as a result of having lawfully used medical marijuana. The Michigan Court of Appeals held that an employee who is discharged after lawfully using medical marijuana outside of the workplace is not disqualified from receiving unemployment benefits. In contrast, Colorado’s statute disqualifies an individual from receiving unemployment benefits after the presence of a controlled substance that was not medically prescribed was found in the individual’s system during working hours. The Colorado Court of Appeals held that employees terminated after testing positive for marijuana in violation of an employer’s zero tolerance policy, could be denied unemployment benefits.

Wrongful Termination Claims

In states with statutes that are silent as to whether an employee who engages in the legal use of marijuana is protected on that basis, claims for wrongful termination have generally failed.

Off-Duty Activity

A number of states prevent employers from discharging or discriminating against employees for “lawful conduct” in which employees participate during non-working hours. In Wisconsin, for example, the Wisconsin Fair Employment Act (WFEA) prohibits discrimination on the basis of use or nonuse of a lawful product, which, by way of example, prohibits employers from terminating employees simply because they use tobacco products while they are off-duty, at home on the weekend. While this seems relatively straightforward, it’s not necessarily clear how these statutes will apply to the use of legalized marijuana, considering such use is “lawful” in the states that have legalized it, but marijuana remains illegal under federal law. At least one court, the Colorado Supreme Court, has concluded the state’s lawful activity statute does not protect off-duty marijuana use, as marijuana use is not “lawful” within the ordinary meaning of the word, given it is still illegal under federal law.

Don’t Get Lost in the Weed

While some courts have begun to provide a framework for analyzing these issues, much is still unclear when it comes to legalized marijuana in the employment arena. In the end, employers have a duty to maintain conditions or adopt practices reasonably necessary and appropriate to protect workers on the job, as well as strive for a productive workplace. However, employers must ensure that they do not violate the rights of their employees in the process. We recommend that you:

1. Know the state law and any other statutes that may apply to you or your employees.
2. Know your obligations and rights under the various applicable laws.
3. Develop strong, clear policies regarding drug testing, drug use and consequences.
4. Make sure your employees know your policies and the consequences of violating them.
5. Ensure you enforce your policies consistently.

If you have any questions about navigating marijuana in your workplace, please contact Joel Aziere at jaziere@buelowvetter.com or 262-364-0250 or your Buelow Vetter attorney.