With the enactment of Connecticut’s medical marijuana, Connecticut became the 17th State in the Union to pass legislation legalizing the use of pot in one way or another. As of today, 20 states and the District of Columbia have enacted legislation and that number will likely continue to grow.
Connecticut has now approved comprehensive regulations which will certainly usher in growth in the number of patients who are approved to use medical marijuana. Production and dispensing licenses may be awarded by the winter of 2014 – although that is yet to be seen based on some of the political issues at stake. Eventually, Connecticut will certainly see a burgeoning new industry comprised of state-based pot growers and separate retail dispensaries servicing more than 1,000 certified patients — which is just the beginning of the patient population that will seek certification over the next few years.
This population of patients is already raising significant questions for employers who may have employees who use medical marijuana in order to combat chronic health conditions. Employers are now asking how they should deal with those employees who are certified users and report to work under the influence. Employers are also asking about their rights to discipline employees who may have trace amounts of cannabis in their systems which could be detected through legitimate drug and alcohol screening processes.
The short answer to this question is that the various state statutes enacted, including Connecticut’s, simply provide certified patients with protection against criminal prosecution by the state for their use and possession of marijuana. These statutes provide no protection under Federal law or against an employer’s right to enact and enforce their drug screening and substance abuse policies as they apply to the workplace. See Casias v. Wal-Mart Stores, Inc., 764 F.Supp.2d 914 (W.D. Mich. 2011); Roe v. TeleTech Customer Care Mgmt. LLC, 257 P.3d 586, 24 A.D. Cases 1281 (Wash. 2011); and Emerald Steel Fabricators Inc. v. Bureau of Labor and Industry, 230 P.3d 518, 23 A.D. Cases 1 (Or. 2010).
In fact, employers defending their employment decisions have successfully argued that given the dichotomy between these states’ marijuana laws and federal law (which classifies the possession and use of cannabis as a felony involving a Schedule I drug under The Controlled Substances Act 21 U.S.C, §812 (2006)), federal law preempts state law notwithstanding the issuance of certification cards allowing use at the state level. Employers have asserted, and courts have agreed, that employers have the right to discipline and terminate employees whose marijuana use violates company policies, creates a risk of accidents or results in poor performance.
Therefore, based on the current state of the law, a marijuana user who comes to work high or with pot in his/her system, faces the same risk of discipline and termination as if he/she came to work drunk or high on any other legal narcotic.
An employee’s assertion that he/she is protected from employer discipline because of his or her card-carrying medical marijuana status will go up in smoke.
Andrew C. Glassman is chair of the Business and Finance practice. His practice includes corporate law, commercial transactions and employment and labor relations advisory services.