Tuesday, July 16, 2019

Despite Ambiguity, We Believe the Marijuana Law Prohibits Employers from Disciplining Employees for Using Marijuana Outside of Work

I recently read an article from the National Law Review that said the following:
[if an] “employer has a drug-free workplace policy and an employee tests positive for marijuana in his system from a random drug test, the Cannabis Act should allow an employer to terminate that employee even if not impaired at work without violating the law.”
Although I can see an argument that could be made for this interpretation, I ultimately disagree with it. As I have discussed in a few blog posts, I do not believe the Cannabis Regulation and Tax Act permits an employer to discipline an employee for using marijuana outside of work. And, ironically, a couple of other articles from the National Law Review agree with this position.

While the authors do not expressly provide the rationale for their opinion, I would imagine it would go something like this: Section 5(a) of the Right to Privacy in the Workplace Act states,
“Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act…it shall be unlawful for an employer to refuse to hire or to discharge any individual…because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.” id.
Section 10-50(a) of the Cannabis Regulation and Tax Act states,
“Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug-free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call...”
Therefore, one could argue that because section 10-50(a) is specifically exempted from the Right to Privacy Act, and that section permits employers to adopt zero-tolerance policies, these zero-tolerance policies could extend to the prohibition of employees using cannabis outside of work.

I think this argument is wrong for a few reasons. First, why would the legislature have amended the Right to Privacy Act to make it illegal to punish employees for using products that are legal under state law (which now includes cannabis) if it also would have simultaneously allowed employers to prohibit employees from using cannabis outside of work?

Second, section 10-50 of the Cannabis Act does not apply to off-duty conduct. Section 10-50(a) only applies to conduct “in the workplace” and while an employee is “on call.” Section 10-50(e) only protects discipline in the workplace, while an employee is performing job duties. It seems as though the purpose of section 10-50 is to make it clear that employers can, among other things, to continue drug testing and maintain cannabis-free workplaces. However, because drug tests cannot determine precisely when a person ingested cannabis, and therefore cannot be the sole basis to determine whether an employee is under the influence of cannabis at work, pursuant to the amendments to the Right to Privacy Act a positive drug test on its own cannot form the basis of a decision to discipline an employee.

Therefore, while I think an employer could make an argument that it has the right to continue to punish employees solely on the basis of testing positive for cannabis, I think it would be a weak one. Moreover, maintaining such a policy would increase the employer’s risk of a lawsuit. There is no doubt that plaintiffs’ attorneys will pounce on any opportunity to sue an employer who disciplines an employee solely on the basis of a drug test showing the presence of cannabis in the employee’s system. Even if the employer were to prevail in such a lawsuit it would be expensive, time-consuming, and stressful. And if it were to lose it would be forced to pay the employee’s attorneys’ fees, back pay, and other damages the employee suffered from the discipline. I do not believe the benefits of maintaining such a policy outweigh the risks.

Therefore, I think the best advice is to stop punishing employees solely on the basis of a positive drug test for cannabis. If there are other factors supporting your belief that the employee is under the influence of cannabis, like slurred speech, impaired motor coordination, smelling like cannabis, etc., then a positive drug test can be used as further confirmation that the employee is under the influence. And section 10-50(e)(2) of the Cannabis Act provides employers with immunity for disciplining employees whom they have a good faith belief are under the influence of cannabis at work.

Feel free to reach out to me if you have questions about the Cannabis Regulation and Tax Act. Also, perhaps consider updating your personnel policies to be consistent with the Act.