HR Headaches Around Employees' Off-Duty Medical Marijuana Use

Over the last twenty five years there has been a major cultural and governmental shift with how individuals approach cannabis.  Because of its heralded palliative effects, it is now widely used both recreationally and medically.  Given the growing prevalence of marijuana use for medicinal purposes, Human Resources departments are struggling to navigate the issues that arise when employees are using the substance when they are off the clock.  Courts have begun siding with workers who say they were fired by their employer for their off-duty use of cannabis for medical reasons, which has also left these employers facing discrimination charges for their response.  The myriad of state laws and court cases affecting the controversial substance has HR departments scratching their heads about how to tread the situation carefully.

Several big questions around this topic have come to the surface: Should HR be concerned if an employee is using medical marijuana?  What if an employee has a valid medical marijuana card and is using medical marijuana to treat an approved condition - can an employer fire or discriminate against them for marijuana use?  In Lang v. Adecco USA, Inc., a federal court in Pennsylvania recently decided not to rule on the latter question on the grounds that Pennsylvania courts have not yet addressed whether there is a private right of action under Pennsylvania's Medical Marijuana Act ("MMA").  That means it is still unclear whether an individual can bring a discrimination lawsuit under the MMA.

However, a suit filed less than a month ago in the Philadelphia Court of Common Pleas may finally address the issue.  In Magliocco v. Nice, a former employee alleged that the their employer violated state law by firing him over his use of medical marijuana.  In this case, the plaintiff was using medical marijuana because he was suffering from anxiety while waiting for the company to decide whether he would be hired, a decision that was on hold because of the pandemic.

On the other side of the Delaware River, the Supreme Court of New Jersey answered this question earlier this year in Wild v. Carriage Funeral Holdings, IncIn 2015, funeral home director Justin Wild was diagnosed with cancer and was prescribed medical marijuana as part of his treatment.  In 2016, he was in a car accident caused by the other driver who ran a stop sign, and because he was not under the influence while driving, the hospital did not take a blood test.  However, after the accident, his employer required him to take a blood test for which he tested positive for marijuana and, as a result, was fired.  In this case, the Court stated that the employer could not discriminate against an employee and fire him for marijuana use since the employee had a prescription for medical marijuana and doing so violates the New Jersey Law Against Discrimination ("LAD").

The Wild lawsuit concerned the interaction between the New Jersey Compassionate Use Medical Marijuana Act, which legalized medical marijuana usage in the state, and the LAD.  In July 2019, the Compassionate Use Act was amended to endorse the Appellate Division's decision in Wild v. Carriage Funeral Holdings and expressly prohibit employers from taking adverse employment action against a medical marijuana user if the action is "based solely on the employee's status" as a medical marijuana patient.  The New Jersey Supreme Court held that the Appellate Division correctly identified the employee's LAD claims - disability discrimination failure to accommodate.  The Supreme Court further held that the Compassionate Use Act does have an impact on an employee's existing employment rights and can be harmonized with the LAD.  Thus, an employer needs to take caution with an employee using medical marijuana where such use does not affect his/her work performance, to avoid violating the LAD.

Given the number of states where medical marijuana is legal, employment issues with its use will continue to arise often and in varied circumstances.  For example, courts in California, Colorado, and Oregon have all held that employees may be fired for medical marijuana use, even when the employee has a serious medical condition and only uses marijuana during nonworking hours.  Earlier this year, Colorado legislators voted against HB20-1089, a bill that included employment protections for authorized users of medical marijuana.  The bill was partly inspired by the Colorado Supreme Court case of Coats v. Dish Network, LLC, which involved a medical marijuana patient who was fired from his job after failing a drug test.  Lawmakers cite the lack of an adequate test to determine marijuana intoxication in the moment (akin to a breathalyzer for alcohol) as one of the reasons to table the bill.  How to tell if an employee is under the influence of marijuana while at work is another issue confronting employers.

The fact that marijuana use is still illegal under federal law is yet one more issue facing employers.  In Pennsylvania, in the case of Suber v. Pittsburgh Water and Sewer Authority, an employee sued the Pittsburgh Water and Sewer Authority ("PWSA") in the Court of Common Pleas of Allegheny County for firing him due to failing a drug test even though he had a state medical marijuana card.  PWSA argues that the state law permitting the use of medical marijuana products is overridden by the federal Controlled Substances Act, and therefore it cannot be complicit in the employee's violation of federal law.  How this case plays out will have implications for employers in Pennsylvania.

Employee use of medical marijuana poses new and challenging issues for employers and, for now, will need to be assessed on a state by state basis as the case law differs significantly by jurisdiction.  If medical marijuana is allowed in an employer's state, the employer should make sure its actions do not run afoul of the law and/or that it does not discriminate against an employee using marijuana for a medical condition.  Given the still relatively new use of medical marijuana and the ever changing legal landscape, it is best to consult an employment law attorney if an employer is not sure how to proceed when facing such a situation based on their place of business.