Employers in the states that have legalized medical marijuana are left wondering whether to change their employment policies, stop random drug-screening for marijuana, or accommodate medical-marijuana users. While many state laws completely legalized the use of marijuana, federal law continues to classify marijuana as a Schedule I drug with a high potential for abuse and no currently accepted medical use. As such, marijuana continues to be in the “legal-but-not-entirely-legal-status.”[1]
            Most employees are at-will meaning that the employer may terminate them at any time for any reason.[2] Therefore, parties may agree on any terms they want, including a drug-free policy. In the healthcare context, because of the highly regulated nature of the profession, a vast majority of healthcare businesses require their employees to be drug-free, which is often enforced through mandatory drug testing. While some states protect employees for medical marijuana user, California law does not protect marijuana users from workplace termination. The California Supreme Court has ruled that employers have a right to drug test and terminate employees based on positive testing.[3] The Ninth Circuit also held that the ADA does not offer job protection for medical marijuana users because it is an illegal substance under federal law.[4] Moreover California’s Adult Use of Marijuana Act (Prop. 64 ) itself provides that employers may test employees for marijuana use prior to hiring or at any time during the employment and terminate the employment in case of the positive outcome. Therefore – because marijuana continues being an illegal substance under the federal law – the employers may continue terminating employees based on the usage and do not have to accommodate such employees in the workplace.[5]
            Some states, however, take a different approach, which potentially may influence other states in their medical marijuana policies. Recent decisions by Massachusetts and Rhode Island state courts (both states have legalized medical use of marijuana) held that an employer may have an obligation to accommodate the off-duty use of medical marijuana.[6] Both courts recognized that the state laws do not provide express employment protection. Nevertheless, an employer may be obligated to provide a reasonable accommodation  since the medical marijuana acts protect medical use. The courts further held that an accommodation is not per se unreasonable simply because marijuana continues to be illegal under the federal law.
            In light of these decisions, employers – especially if located in Massachusetts and Rhode Island – should take precautions in administering their drug use policies. For example, employers should take time explaining their drug policies to employees, provide justifications for the need for drug-testing, and consequences if such testing is returned positive. In addition, if a drug test is returned positive for marijuana, employers might want to analyze whether the employee has a qualified disability and whether to provide an accommodation. If an accommodation is provided or not provided, the decision should be well-documented.
[1] Erwin Chemerinsky, Jolene Forman, Allen Hopper & Sam Kamin, Cooperative Federalism and Marijuana Regulation, 62 UCLA L. Rev. 74, 113 (2015).
[2] With some limited exceptions, none are applicable in the medical marijuana context.
[3] Ross v. RagingWire Telecomm., Inc., 174 P.3d 200, 203 (Cal. 2008).
[4] James v. City of Costa Mesa, 700 F.3d 394, 396 (9th Cir. 2012).
[5] Coats v. Dish Network, LLC, 350 P.3d 849, 851 (Colo. 2015.)
[6] Regalado v. Callaghan, 207 Cal. Rptr. 3d 712, 716 (Cal. App. 4th Dist. 2016), review denied (Dec. 21, 2016)
  Barbuto v. Advantage Sales and Mktg., LLC, 78 N.E.3d 37, 40 (Mass. 2017)