marijuana in the workplace a “jekyll and hyde” story

By Dr. Jim Castagnera, Esq.

Partner, Portum Group International, LLC

Despite his relatively-low approval ratings, Joe Biden by any measure has been an effective chief executive.  You can’t drive across town in my Philadelphia suburb without encountering a “detour” sign where a street (or what lies under it) is undergoing major repairs.  That’s thanks to Joe’s bipartisan infrastructure bill. In 2022, a bipartisan majority in both houses passed laws preventing pre-dispute arbitration, confidentiality and non-disparagement clauses in employment contracts from being enforced in sexual harassment and assault disputes.  He’s made $15/hour the standard for federal employees and contractors.  Most recently he negotiated a bipartisan budget deal that averted a national debt default.  Not a bad record for an octogenarian in what may be the nation’s toughest executive position.

Joe Biden’s success is attributable to a number of factors.  At 80+ he’s a cagey old Irish setter, who can run anymore, but somehow still gets the fox.  He’s a great negotiator and a tough cookie.  And he’s also a moderate --- admittedly a left-leaning one --- who understands that in a democracy compromise is key.  He also knows how and when to pick his battles.

My point is that, if the nation’s tens of millions of marijuana users are disappointed that Joe hasn’t led the charge to legalize pot, then they don’t know much about our Irish-Catholic president.  Can you imagine him taking a long toke on a fatty?  Not likely!  To the contrary, early in his presidency, he signaled that a major shift in national policy was highly unlikely.

According to CNN in 2021, “Last year, Gallup polling showed that 68% of Americans favored legalizing the drug for recreational use. That was the highest ever recorded by Gallup. A NORC poll last year similarly discovered 67% favored marijuana legalization.  Biden, however, has tread carefully on marijuana reform. While he doesn't want it to remain illegal, he just wants it to be decriminalized, not legalized.” [https://www.cnn.com/2021/03/28/politics/biden-marijuana-policy-analysis/index.html]

A year later the president was more assertive, but his fundamental position hadn’t really changed.  On October 6, 2022, Biden made three announcements regarding what he referred to as the “end” the federal government’s “failed approach” to marijuana:

“First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana.  I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals.  There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions.

 “Second, I am urging all Governors to do the same with regard to state offenses.  Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either. 

“Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.  Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances.  This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic. 

 “Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.”

[https://www.whitehouse.gov/briefing-room/statements-releases/2022/10/06/statement-from-president-biden-on-marijuana-reform/]

Meanwhile, nearly 40 states have legalized medical marijuana and about half that number have legalized pot possession for recreational purposes.  This dichotomy between federal and state law has made for a “Jekyll and Hyde” story… or, more accurately, many such stories.  Consider, for example, Coats v. Dish Network, LLC, a 2015 Colorado Supreme Court case.  Coats was a Dish employee, who was confined to a wheelchair and used medical marijuana to manage chromic pain.  When he got caught up in a random drug test and came up positive, he fought his job termination under Colorado’s so-call ‘legal activities’ statute.  That law states: “It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.”

Coats contended that, because he had a legal prescription from his doctor duly issued under the state’s medical-marijuana act, the legal-activities statute required his reinstatement.  Wrong, retorted the state’s highest court.  While the grass was green under the state statute, it still was an illegal weed under the federal Controlled Substances Act.  Would the case go differently today, if Biden has his way and cannabis is moved down the hierarchy from a Class I substance in company with heroin to some lower level?  Hard to say.

And there still will be the Drug-Free Workplace Act. ““The Drug-Free Workplace Act of 1988 requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.” https://webapps.dol.gov/elaws/asp/drugfree/screenr.htm  That law isn’t going anywhere in a hurry.

When I do webinars on marijuana in the workplace, there sometimes is an attendee who frets about the Americans with Disabilities Act.  Does it, the fretter wonders, require allowing on-the-job possession and use of medical cannabis as a reasonable accommodation.  So far, the federal courts have responded emphatically “no”.  And most state courts and legislatures are in agreement.

Many of the new state laws protecting workers' marijuana use specifically state that companies can still have certain drug-use policies for their employees and allow for federally-required drug testing. The highest courts in California, Montana, Oregon, and Washington have ruled that employers do not have to accommodate medical marijuana use. In 2008, the California Supreme Court held that the state's Fair Employment and Housing Act does not require an employer to accommodate an employee's medical marijuana use. Nor did the Compassionate Use Act provide a clear mandate of public policy, preventing an employee's termination for failing to pass a drug test. The court concluded, that the Compassionate Use Act provides a defense in state criminal prosecutions, but was not intended to eliminate employer's legitimate interest in whether employees used drugs banned by federal law or to otherwise extend to employment law. [Ross v. Raging Wire Telecoms., Inc., 42 Cal. 4th 920, 174 P.3d 200 (2008)] In 2012, the Ninth Circuit held that physician-supervised marijuana use was, in fact, federally prohibited drug use and, as such, was not protected by the ADA. [James v. City of Costa Mesa, 684 F.3d 825 (9th Cir.), amended by 700 F.3d 394 (9th Cir. 2012)]

Another federal judge more recently dismissed a case as “frivolous,” observing that “it simply is not possible to conclude that creating an exception for medical marijuana in State law would be a ‘reasonable accommodation’ under the ADA.”

[Zarazua v. Ricketts, 2017 WL 6503395 (D. Neb. Oct. 2, 2017)]

However, a somewhat-contrary trend is discernible in the direction of providing workplace protection to medical marijuana users. Currently, 21 states have laws preventing employers from discriminating against workers based on their use of medical marijuana, and off-the-job employee use of recreational marijuana is also protected in four states and several local jurisdictions. [https://www.canorml.org/employment/state-laws-protecting-medical-marijuana-patients-employment-rightshttps://www.canorml.org/employment/state-laws-protecting-medical-marijuana-patients-employment-rights/]  I suppose Mr. Coats can only wish that he has a “do-over.”

It also occurs to me that the U.S. Supreme Court may be inclined to make marijuana legalization a purely “states’ rights” issue. Consider this: The Dobbs case, which last year abrogated Roe v. Wade, is at least arguably a states’ rights decision.  Granted, the Court majority is politically conservative and religiously Catholic. But, rather than reading Dobbs as an expression of those values, one might read the decision as an affirmation that abortion, as a social and political issue, belongs to the individual states and not the federal government.  One might make a similar argument about marijuana.  In fact, once upon a time, California did just that.

Californians were the first to carry their case to the nation's highest judicial forum. Marijuana users and growers under the California Compassionate Use Act launched their attack on the federal Controlled Substances Act (CSA) on the theory that the latter violated the Constitution's Commerce Clause. [Gonzales v. Raich, 545 U.S. 1 (2005)]

California's Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Plaintiffs Raich and Monson were California residents who both used doctor-recommended marijuana for serious medical conditions. After federal DEA agents seized and destroyed all six of Monson's cannabis plants, they brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the CSA to the extent it prevented them from possessing, obtaining, or manufacturing cannabis for their personal medical use. They claimed that enforcing the CSA against them violated the Commerce Clause and other constitutional provisions. The district court denied their motion for a preliminary injunction, but the Ninth Circuit reversed, finding that they had demonstrated a strong likelihood of success on the claim that the CSA is an unconstitutional exercise of Congress's Commerce Clause authority as applied to the intrastate, non-commercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law.

The Supreme Court, however, reversed the decision. Six Justices reached all the way back to a 1942 precedent to hold that the plaintiffs' strictly local activity affected interstate commerce sufficiently to permit federal intrusion. The Court said, “In assessing the scope of Congress' Commerce Clause authority, the Court need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis exists for so concluding. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.”

On October 13, 2020, the U.S. Supreme Court declined to hear a case challenging the DEA's classification of marijuana as a Schedule I drug.

[https://www.marijuanamoment.net/supreme-court-declines-to-hear-marijuana-case-challenging-deas-restrictive-classification/]

Most recently, however, Supreme Court Justice Clarence Thomas called federal cannabis prohibition “contradictory and unstable,” signaling to many that federal cannabis legalization may be nearing. In a recent statement denying the appeal of a case regarding a tax code that prohibits cannabis retailers from taking ordinary business deductions, Justice Thomas said: “Once comprehensive, the Federal Government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the un-wary.”

[https://www.forbes.com/sites/willyakowicz/2021/06/29/supreme-court-justice-thomas-calling-federal-cannabis-prohibition-contradictory-and-unstable-signals-legalization-is-near/?sh=7e9629fd5321]

Candidly, I seldom agree with Justice Thomas --- the darling Justice of a billionaire buddy --- but this time I must admit the man has a point.  So… if President Joe doesn’t maintain momentum on marijuana decriminalization, Justice Clarence may incentivize the SCOTUS to get the job done. 

But either way, I don’t think employers who favor keeping their workplaces drug free should lose any sleep.  My advice: focus your attention on performance issues.  Never you mid whether inefficiency or unsafe job performance is the result of marijuana use or good-old incompetence or plain laziness.  If you can document the poor performance, you are three-fourths of the way to making a case that will stick.   

There’s no Jekyll and Hyde story where incompetent and unsafe performance are established in the work record.