State laws also stand in complete contrast to the federal position on medicinal marijuana use. According to federal law, marijuana is classified as a Schedule 1 substance (meaning it's illegal for anything outside of research), and the FDA has not recognized or approved the marijuana plant as medicine.

How does the federal-state divide add to confusion on marijuana usage?

It remains unclear whether or not the current White House will follow the states which have acknowledged marijuana as medicine. President Trump has, at times, signaled he is willing to support a move toward the legalization of medical marijuana, which would be a departure from the position of his former Attorney General, Jeff Sessions. In February, President Trump signed a federal spending bill into law that contains a rider preventing the Department of Justice from interfering in state medical marijuana laws. However, during this signing ceremony, the President made it clear that he reserves the right to ignore the cannabis provision in the spending bill.

For any employer contracting with the federal government, the rules are generally clear—no marijuana usage is allowed. But, for employers without federal government contracts, evolving state laws present a tremendous conflict. Employers are left to question whether they must follow federal or state law.

Where does marijuana usage and employer-employee relations stand?

Employers have historically been able to lean on federal laws to argue that marijuana is an illegal drug and, as a result, they were free to issue blanket policies which prohibit employee use of the drug. Recent decisions in state and federal courts across the country, however, suggest that employers are losing this argument. Courts are looking closely at the specific language of each state law—often ignoring or minimizing the impact of federal law on the analysis—and finding that employers must accommodate medical marijuana use or change company drug testing policies to avoid punishing employees for legal use of the drug.

In some instances, the courts are giving employees additional protection to use medical marijuana under state anti-discrimination laws. This goes beyond any protections that may be outlined in a state's medical marijuana law. Specifically, courts that are looking at anti-discrimination laws are finding that employers cannot discriminate against employees using medical marijuana on the grounds that they are disabled; otherwise, why are they prescribed the drug in the first place. In these states, if an individual has a valid prescription for medical marijuana, for the purpose of treating a disability, an employer may face liability if the employee is terminated or otherwise treated differently than other non-disabled employees.

Favorable court decisions for employees using medical marijuana, and the threat of litigation alleging disability discrimination, has caused some employers to reevaluate which positions and job responsibilities within their organizations may be considered safety sensitive. If an employer can clearly show that a job is safety-sensitive, which requires careful analysis with the help of legal counsel, action may be taken to remove an employee who is using medical marijuana on the basis that they could be impaired.

Employers must be careful when labeling a position as safety-sensitive, because they will surely be challenged to show that a failure to safely perform the job poses a significant risk of harm to the health/safety of the employee or others around the employee. Moreover, it remains difficult for employers to pin-point when an employee may be impaired or under the influence when using marijuana outside of work hours. Drug testing is not currently reliable. Results can pick up marijuana that has been in the employee's system for weeks.

Of course, each of the 33 states and Washington, D.C. that allow some form of medical marijuana use vary on what's permitted and who's allowed to claim marijuana usage to treat a disability. Defining what is a disability that can be treated by medical marijuana and what constitutes a reasonable threat to safety turns on the facts of each employee's situation and may be treated differently in each state. Also, testing for the drug to determine when an employee may be free from impairment is difficult. As such, it is recommended that employers get advice from legal counsel before making any final decisions.

What does the future of marijuana look like for employers?

As earlier stated, the trend is moving toward protecting the rights of employees to use marijuana as legitimate medicine. In Barbuto v. Advantage Sales and Marketing LLC (2017), the Supreme Judicial Court of Massachusetts broke from the line of precedent among state and federal courts by allowing a medical marijuana user with a valid prescription to pursue a claim for disability discrimination under state law after she was terminated for a positive drug test.

Other courts around the country have also sided with the employee, with some finding that employers discriminated against workers when they terminated medical marijuana cardholders solely due to a positive drug test.

If these rulings are any indication, state laws will continue to protect individuals and their rights to use medical marijuana and state courts will decide the fate of employers taking action against employees using marijuana as medicine. Until technology improves to a point where it can be discovered whether a person is impaired or under the influence of marijuana on the job, there will continue to be significant challenges for employers.

In the meantime, employers can no longer hide behind federal law on this issue and ban the use of medical marijuana outright. In order to protect themselves from employee lawsuits, companies must work with legal counsel experienced in state-specific marijuana laws to create new drug testing policies and marijuana usage policies that comply with these ever-evolving laws.

Jill Lashay is a Labor & Employment attorney with Buchanan Ingersoll & Rooney and a member of the firm's Cannabis Law Practice.

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