A few months ago, we posted a blog about the legal and practical issues of medical marijuana. This blog follows up on the challenges facing employees who are using medical marijuana to address their side effects from cancer treatment.
Legal Cases, Updated Laws, and Employment Issues
Currently, 25 states and the District of Columbia allow for the use of medical marijuana. In an article written by Jon Woodruff, a legislative attorney for the National Alliance for Model State Drug Laws, it is estimated that about 70-80% patients using marijuana are between the ages of 18 and 60. These numbers indicate that many of those patients are currently in the workforce. With more and more state laws increasing the availability of medical marijuana and recreational marijuana, new legal issues are occurring at the workplace between employers and employees.
Despite the state-by-state legalization, the fact remains that marijuana is still illegal under federal law. This makes treading the employment waters very tricky for both employers and employees.
This leads to the biggest question, can an employee be terminated or have a job offer rescinded based on their use of medical marijuana? The answer is . . . it depends. Under most state laws, an employer is not required to accommodate an employee’s use of medical marijuana, but there are some exceptions to this.
Breakdown of Requirements for Employers to Accommodate Employee Use of Medical Marijuana by State
|State law does not explicitly address employer accommodation
||Hawaii, Louisiana, Maryland, New Mexico, Vermont, and the District of Columbia
|Employers are NOT required to accommodate
||Alaska, California, Colorado, Maine, Massachusetts, Michigan, Montana, New Jersey, New Hampshire, Oregon, Pennsylvania, Rhode Island, and Washington
|Employers cannot discriminate against or terminate a registered patient (other than a federal employee)
||Arizona, Delaware, Minnesota, and Connecticut*
|Employers are required to make attempt to accommodate use
||Nevada, New York, and Illinois
|Pending bills requiring more employer accommodation
||Hawaii, Michigan, New Jersey, and Rhode Island
*Connecticut statute does not address accommodation, but states that employer cannot refuse to hire based on status as a “patient.”
Court cases in New Mexico, Colorado, and Oregon aren’t making it any easier to understand when and where it is acceptable to work as an employee using medical marijuana. In New Mexico, a court ruled that it would not require employers to accommodate the use of “a drug that is still illegal under federal law” (Garcia v. Tractor Supply Co.). Meanwhile, in Colorado, one of the states that has legalized marijuana for recreational use, a court ruled that termination of an employee is valid because marijuana is still classified as illegal under the federal Controlled Substances Act (Coats v. Dish Network). Brandon Coats, a quadriplegic, licensed to use medical marijuana after his painkillers used to treat muscle spasms had lost effectiveness, was terminated from his job when failing a mandatory drug test. The termination was deemed valid in Colorado’s Supreme Court. Finally, in a court case in Oregon, a state that does not require employers to accommodate medical marijuana use, an arbitrator reinstated a Lane county employee that was fired for medical marijuana use outside of the workplace, while off-duty.
A Lack of Research Findings
Medical marijuana has become a hot topic for legalization for a number of different reasons. The reported ability to help reduce pain and nausea and to increase appetite are the major contributing factors to its promotion, particularly in the cancer community. However, despite the attention, the research on marijuana’s ability to control pain, nausea, and stimulate appetite is severely lacking. In an article published in Cure Magazine, the author summarizes what studies have been conducted and why it has been so difficult to develop better studies in recent years. The major issue facing medical marijuana research is the classification of marijuana as a Schedule I substance with “no medical uses,” under the Controlled Substances Act. This makes it difficult to get funding or materials to conduct research or a clinical trial. The Journal of the American Medical Association (JAMA) and CA: A Cancer Journal for Clinicians have both published articles attempting to summarize the research that has been done, but combined found a total of nine studies that looked into the use of inhaled cannabis for pain and even less (only two) met inclusion criteria for studying the effect of inhaled cannabis on chemotherapy induced nausea and vomiting. While each of these studies did find that marijuana use decreased the effects of pain, the study size and duration leaves much to be desired in terms of power. Outside of established medical journals, trials have found that smoking cannabis does help chemotherapy patients with controlling nausea and vomiting better than a “no treatment” test group and the ingestion of a purified active ingredient of cannabis.
There are other concerns about the use of medical marijuana, including a lack of regulation of quality, dosage, and a lack of understanding of how it may interact with other treatments, such as chemotherapy. Testing of available medical marijuana has found fungus, bacteria, and other ingredients which could be unhealthy.
The minimal research that has been done so far does show promising results with data concluding that inhaled cannabis helps with pain, nausea and vomiting, and increased appetite in chemotherapy and AIDS patients. Current FDA approval exists for pill forms of medical marijuana in Marinol (dronabinol) and Cesamet (nabilone), for the treatment of nausea and vomiting in patients with AIDS or who are undergoing chemotherapy, respectively. However, we now need higher quality studies of medical marijuana to fully understand its benefits and determine whether the benefits do outweigh the risks, such as paranoia, anxiety, irritability, lethargy, acute increase in blood pressure, cognitive impairment, and other possible side effects.
What Does This Mean for Employees and Patients?
As an employee, it is important to make sure that you know your employer’s policies on drug use. Some employers have a “zero tolerance” policy, because it makes managing employees simple or it may be a company that is in multiple states. Other companies take a more relaxed approach, by delegating certain “safety-sensitive” positions that do allow for termination if an employee is found under the influence. For example, you probably wouldn’t want your school bus drivers or your airline pilots to come to work under the influence. Employers also need to know their legal responsibilities under relevant state laws or they may find themselves in violation of disability laws for not reasonably accommodating their employees. As always, if you have any questions, it is best to seek legal advice from a professional in your area.