• Drug-Free May Not Be Problem-Free
  • June 10, 2019 | Author: Leah Kathryn Sell
  • Law Firm: Leech Tishman Fuscaldo & Lampl, LLC - Pittsburgh Office
  • Recent legislation and case law indicates that now, more than ever, employers should take care before utilizing strict drug-free workplace policies. Stringent policies, without exception, could expose employers to liability for discrimination or other causes of action, particularly in jurisdictions that permit the use of cannabis for either medicinal or recreational purposes.

    Cannabis Use and Employer Testing Policies

    New Jersey and Arizona[1] courts have each provided recent decisions determining that an employee’s off duty use of medical cannabis, resulting in a positive drug test, was not an automatically terminable offense. The New Jersey court held that even though New Jersey’s cannabis legislation does not have employment protections for medical cannabis users, “It would be ironic indeed if the Compassionate Use Act limited the [legislation] to permit an employer’s termination of a cancer patient’s employment by discriminating without compassion.”[2] The appeals court did not determine if the employer had an affirmative duty to provide an accommodation; instead it only held that the employee had pled the necessary elements of a disability discrimination action and the case should be permitted to proceed.

    Several states, including Arizona, Delaware and Minnesota,[3] no longer permit employers to test candidates or employees for cannabis, or at least prevent the employer from rescinding an offer or terminating an employee solely based upon a positive result if the person is a valid medical cannabis cardholder. Employers in Pennsylvania are currently prohibited from utilizing a person’s medical cannabis cardholder status in hiring or other employment decisions.

    New York’s pending legislation[4] to legalize cannabis for recreational purposes restricts the conditions under which an employer can take adverse action based on cannabis use. The legislation requires that the employer establish that an employee’s cannabis use impaired the employee’s ability to perform the job responsibilities prior to the employer taking an adverse action. This means that, like with other medications, an employee could be permitted to continue to work while taking cannabis, so long as the employee was still able to perform their job duties. New York’s legislation provides that adverse action can only be taken once “the employee manifests specific articulable symptoms while working.” Whereas, Pennsylvania permits an employer an array of prospective actions based upon safety assessments, even prior to observable behavior.

    What is Considered “Under the Influence?”

    The majority of jurisdictions still permit an employer to prohibit the use or possession of cannabis in the workplace and allow an employer to take adverse action where an employee is ‘under the influence’ while at work. However, there is currently no testing equivalent to blood alcohol or a breathalyzer to allow employers to timely and accurately assess if an employee is ‘under the influence.’ While most individuals remain ‘under the influence’ for several hours, test results can return positive for days, weeks or even a month after use- long after the person would reasonably be ‘under the influence.’ There is also no agreed standard concertation levels to determine when one is ‘under the influence.’ Further complicating matters, many regulations fail to define what ‘under the influence’ means and provide little, if any, guidance in making such a determination, even though the ability to make employment decisions often depends on this key term. Therefore, the burden of determining whether or not an employee is ‘under the influence’ of cannabis in the workplace is largely subjective and left to the employer. Without guideline for making such a crucial determination, this is an area ripe for claims of discrimination.

    Considerations for Employers

    While employers are not yet required to accommodate cannabis use by employees in the workplace, it is important for employers to take a practical approach to the intersection of workplace procedures and what rights and protections employees have both inside and outside of work. Employers should also take care to update their policies and consider each situation based upon the developing regulations and emerging case law.