Employment Law Commentary, February 2015

WHERE THERE'S SMOKE, SHOULD THERE BE FIRE? AN ANALYSIS OF EMPLOYER TERMINATION RIGHTS FOR EMPLOYEE OFF-DUTY MARIJUANA USE

By Debra Urteaga

INTRODUCTION

With the recent increase in the number of states that have "legalized" or decriminalized some form of marijuana use, more and more employers have asked themselves whether it continues to be permissible to terminate employees who use marijuana off-duty.

The simple answer is "yes," but whether or not an employee has any form of protection depends on the particular state in which the employee works. Twenty-seven states and the District of Columbia currently have laws permitting the use of medical marijuana under certain circumstances, but only nine of these states (Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, and Rhode Island) provide any employment protections for marijuana users.

Still, under federal law, marijuana is and remains an illegal drug,1 meaning that any state protection regarding an employee's marijuana use may be merely illusory or, at best, temporary, until federal law is amended to say otherwise.

THE FEDERAL BACKDROP

In 2005, the U.S. Supreme Court ruled that, under the Commerce Clause, Congress had the power to criminalize the production and use of homegrown marijuana even in states with laws allowing for medicinal use of marijuana.2 Despite this ruling, the Supreme Court did not preempt state laws that decriminalized marijuana use and, to date, many states continue to pass legislation that seems to be in direct contravention of the Supreme Court's ruling.

STATES PLAY BY THEIR OWN RULES

1. Medical Marijuana Is Growing

   To date, 28 jurisdictions have legalized or decriminalized marijuana use for medicinal purposes.3 These state laws, however, either omit or expressly exclude protection against marijuana use during working hours, on public property, or if it would create a safety hazard.

2. Statutory Employee Protections

   Nine state statutes expressly provide for employee protections, usually from discrimination on the basis of being a cardholder or for testing positive for marijuana during an employment drug screening. Some states even provide that an employer must accommodate a medical marijuana patient.

   Below is a list of current state statutes providing employee protections:

   Arizona: "An employer may not discriminate against a person based upon the person's status as a registered qualifying patient or testing positive for marijuana components." Ariz. Rev. Stat. Ann. § 36-2801, et seq. Connecticut: "An employer may not refuse to hire, discharge, penalize or threaten an employee solely on the basis of the person's status as a qualifying patient or primary caregiver." Conn. Gen. Stat. § 21a-408, et seq. Delaware: "An employer may not discriminate against a person based upon the person's status as a registered qualifying patient or testing positive for marijuana components . . ." Del. Code Ann. Tit. 16 §§ 4903A, 4905A. Illinois: "An employer may not discriminate against a person based solely upon the person's status as a registered qualifying patient or registered designated caregiver . . ." 410 Ill. Comp. Stat. § 130/25, et seq. Maine: "An employer may not discriminate against a person based solely upon the person's status as a qualifying patient or primary caregiver." Me. Rev. Stat. Ann. Tit. 22 §§ 2383-B, 2423-A, 2423-E. Minnesota: "[A]n employer may not discriminate against a person based on their status as a registered qualifying patient or testing positive for cannabis...