• Former NAGTRI Program Counsel
    National Association of Attorneys General

Introduction

In recent years, 26 states and the District of Columbia have legalized marijuana in varying degrees.1 The increase in legalization mirrors current public support for the decriminalization of marijuana. In a survey conducted by the Pew Research Center in 2015, 53 percent of Americans felt that marijuana should be legal while 44 percent supported continued criminalization.2 Compared to similar polls conducted in 2010 and 2013, support for decriminalization increased by 11 percentage points.3

However, while many states and the District of Columbia have legalized marijuana, it is still designated as a Schedule I substance4 under the federal Controlled Substance Act (CSA),5 which criminalizes the possession, manufacture, distribution, and sale of the drug. The tension between federal and state law has led to confusion and challenges in many industries, including law enforcement, banking, and real estate. Across all industries, employers of individuals who use marijuana are also grappling with the juxtaposition of state and federal law.

State legalization of marijuana is of real concern to employers who strive to maintain productivity, ensure workplace safety, and protect workers’ rights. As marijuana is legalized, usage increases. For example, after marijuana was decriminalized in Colorado, the number of positive workplace drug tests increased by 20 percent between 2012 and 2013, compared to a national average increase of five percent.6

This article will explore concerns most commonly faced by employers located in states which have legalized marijuana. The article concludes by providing suggestions for how employers can best navigate this landscape.

“Zero Tolerance” Policies

Employers in states in which marijuana has been legalized must first determine whether their workplace is regulated by The Drug Free Workplace Act (the Act). 7 The Act requires that all federal grant recipients and federal contractors8 adopt a zero tolerance policy at their workplaces and certify to the federal government that their workplaces are drug free. In addition to this certification, these employers generally must:9

  • Develop and publish for employees a written policy and ensure that employees read and consent to the policy as a condition of employment;
  • Initiate awareness programs to educate employees about the dangers of drug abuse, the company’s drug workplace policy, any available drug counseling, rehabilitation and employee assistance programs, and penalties that may be imposed on employees for drug abuse violations;
  • Require that all employees notify the employer or contractor within five days of any conviction for a drug offense in the workplace; and
  • Make an ongoing good faith effort to maintain a drug-free workplace.

The Act does not require that employers conduct mandatory drug tests.10

If an employer is not required to comply with the Act, such employer can still institute a zero tolerance policy for those workers in “safety-sensitive” positions. A “safety-sensitive” position, generally, is one in which an employee is responsible for the safety of herself or others.11 Positions that fit into this designation would include those involving driving or the use of machinery, among many others. If such a position requires a commercial driver’s license (CDL), then the employer is mandated to abide by the Omnibus Transportation Employee Safety Act of 1991, which requires that all employers drug test employees whose duties require a CDL.12

Even if an employer is mandated or chooses to adopt a zero tolerance policy under the Act, such employer will still inevitably encounter many of the issues discussed below.

A Prelude – Drug Testing

Marijuana contains a compound known as tetrahydrocannabinol (THC), which metabolizes quickly into a compound that can remain in a user’s body for weeks after marijuana consumption.13 Certain tests, such as urinalysis, only detect THC metabolites, meaning that these tests cannot indicate impairment, only the presence of the metabolite.14 While blood and saliva tests can provide a more accurate impairment reading, blood tests are more invasive and may violate employee privacy rights and the technology surrounding saliva tests is still new.15

State law generally regulates when employee drug testing may occur.16 However, regardless of jurisdiction, there are more constraints placed on public employers than private employers in this realm. Because drug testing is a “search,” public employers must ensure that these searches are reasonable, in accordance with the Fourth Amendment. Usually, this requires that the searches be based upon individualized suspicion of wrongdoing, with “particularized exceptions to the main rule . . . based on ‘special needs, beyond the normal need for law enforcement.’” 17

Keeping these requirements and drug testing methods in mind, the rest of this article will examine the interplay between the legalization of marijuana and employment law.

Medical Marijuana and Disability Discrimination Claims

The Americans with Disabilities Act (ADA)18 prohibits employers from discriminating against qualified individuals19 on the basis of disability, which is defined as “a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.”20 The ADA prohibits discrimination in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.21 Covered employers22 are required to provide reasonable accommodations to the disabled employee so that the employee can perform essential duties of his job, as long as such accommodations do not impose an undue hardship on the employer.23 According to the Equal Employment Opportunity Commission, an accommodation is generally “any change in the work environment or the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”24

Section 12114(a) of the ADA states that a qualified individual with a disability shall not cover any employee or applicant who is currently engaging in the illegal use of drugs, when the employer acts on the basis of such use, and that employers may require that employees behave in conformity with the Drug-Free Workplace Act of 1988. The ADA defines “illegal use of drugs”25 as the use of drugs, the possession or distribution of which is unlawful under the CSA, but excludes from this definition the use of a drug taken under supervision by a licensed health care professional. 26

Courts have considered whether the ADA requires employers to accommodate employees’ legal use of medical marijuana to treat serious medical conditions. In other words, under the ADA, the question is whether an employer can take an adverse action against an employee simply because of that employee’s participation in a state-authorized medical marijuana program or whether the employer must accommodate that employee’s use of medical marijuana. In states where statutes are silent on this issue, courts have generally determined that employers are not required to accommodate medical marijuana use under the ADA or under state statutes modeled on the ADA.

For example, in Emerald Steel v. Bureau of Labor and Industries,27 the Oregon Supreme Court held that an employer does not have a duty to accommodate an employee who used medical marijuana outside of the workplace because marijuana is illegal under federal law. The employee was a drill press operator who was fired after a positive urinalysis for marijuana metabolites. The employee brought suit under Oregon’s anti-discrimination statute, which closely paralleled the ADA.28 The court explained that the two potentially applicable exclusions from the phrase “illegal use of drugs” – the use of drugs authorized by state law and the use of drugs taken under the supervision of a licensed health care professional – do not apply in this case. The employee was not using marijuana under the supervision of a licensed health care professional because his doctor had given him a recommendation rather than a prescription.29 Additionally, the court found that the CSA preempted the state disability discrimination act, though it did not preempt the statute that legalized the use of medical marijuana.30

The Emerald court referenced the case of Ross v. Raging Wire Telecomms., Inc.,31 in which the California Supreme Court reached a similar decision after “finding that, in enacting its state medical marijuana law, the voters did not intend to affect an employer’s ability to take adverse employment actions based on the use of medical marijuana.”32 The Ross court also found that employers do not have to accommodate their employees’ off-site medical marijuana use.

However, some states have enacted laws which speak specifically to medical marijuana accommodation. For example, in New York, a certified patient “shall be deemed to be having a ‘disability’ under the state’s human rights law.” 33 Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada also have laws which contain “either anti-discrimination or reasonable accommodation provisions” applicable to employers.34 For example, in Arizona, Delaware, Minnesota, and Nevada, employers cannot take an adverse employment action based solely on an employee’s participation in a medical marijuana programs “unless failing to do so would violate federal laws or regulations or cause an employer to lose a monetary or license related benefit under federal law or regulations,”35 such as the Drug Free Workplace Act of 1988.

Therefore, in states where there is a duty to accommodate an employee’s marijuana use, employers must usually consider the specific needs of the job as well as any applicable completing regulations before acting.36 Some examples of “reasonable accommodations” in these states might include a modified work schedule that would allow the employee to treat his condition with medical marijuana from home during his normal work hours. However, if the position involved is classified as “safety-sensitive,” employers may be able to assert that there is no accommodation that would not lead to undue harm, as marijuana use by the employee or applicant “may pose a ‘direct threat’ to the health and safety of himself” or another.37 Employers might also assert that the ADA, which expressly exempts illegal drug use from coverage, preempts state duty to accommodate laws.38

Whether an employer is in an “accommodation state” or not, he or she must be careful to ensure that adverse employment decisions are made based on the individual’s use of marijuana rather than based on the underlying medical condition, in order to avoid liability under the ADA or a state-specific discrimination statute.

Marijuana Legalization and Wrongful Termination Claims

As noted above, many marijuana legalization statutes and initiatives do not explicitly address the use of marijuana at the workplace.39 In addition to the discrimination claims discussed earlier in this article, employees who have been discharged on the basis of their marijuana use have also attempted to bring suit against their employers by alleging the tort of wrongful discrimination. In states that do not have specific statutory prohibitions on the termination of an employee for the legal use of marijuana, these claims have failed.

For example, in Casias v. Wal-Mart Store, Inc.,40 the Sixth Circuit held that Michigan’s medical marijuana statute does not regulate private employment and thus does not prohibit an employer from disciplining an employee for the use of marijuana even when such use is lawful under state law. In Casias, a Wal-Mart employee lawfully used medical marijuana and was terminated after a work-related injury required him to undergo a urinalysis test. The Casias court held that the plaintiff’s discharge was not wrongful; it concluded that, if the Michigan legislature had intended to prevent a private business from engaging in such disciplinary actions, it would have “expressly set forth this ‘far reaching revision’ in the statute.”[41]

The Washington Supreme Court issued a similar decision in Roe v. Teletech Customer Care Mgmt.42 In Roe, the plaintiff, who had been discharged on the basis of marijuana use, argued that the Washington medical marijuana statute created an “express civil remedy” and “an implied cause of action for wrongful discharge” on the basis of authorized medical marijuana use.43 However, the court found that the law does not prohibit an employer from discharging an employee for the authorized use of medical marijuana as there was no evidence that the voters who were in favor of the medical marijuana law intended for the law “to provide employment protections or to prohibit an employer from discharging an employee for medical marijuana use.”44 The court went on to state that the statute does not “proclaim a public policy prohibiting the discharge of an employee for medical marijuana use.”45

The plaintiff in the Ross case46 also brought a claim for wrongful termination, but the California Supreme Court dismissed this claim, reiterating that the state’s medical marijuana statute “simply does not speak to employment law.”47 Therefore, unless a state’s statute explicitly establishes a cause of action for wrongful termination on the grounds of medical marijuana use, it does not seem as though such a claim would survive.

Marijuana Legalization and Off-Duty Activity Statutes

A number of states48 prevent employers from discharging or discriminating against employees for “lawful conduct” in which employees participate during nonworking hours. While the language in these statutes varies by jurisdiction, many of the statutes also include exceptions for activities that “affect an individual’s ability to perform job-related employment responsibilities or the safety of other employees,”49 or allow exemptions if the employer’s restriction “relates to the fundamental objectives of the organization.”50

While these statutes are fairly straightforward, it is not clear how they apply to the use of marijuana. While such use is “lawful” in the states that have legalized possession of the drug, marijuana possession remains illegal under federal law. In Coats v. Dish Network, LLC,51 Colorado’s Supreme Court held that its state’s lawful activities statute does not protect a worker’s off-duty use of medical marijuana because this activity is not lawful under federal law.

The facts of Coats are particularly compelling because the employee was a quadriplegic who, based on the court filings, did not commit any workplace violation other than testing positive for medical marijuana, which he was licensed to use under Colorado state law. Because Colorado’s lawful activity statute did not define “lawful,” the court looked to the ordinary meaning of the word – “permitted by law,” and determined that an activity that violates federal law cannot be lawful under the ordinary meaning of the term “lawful.”52 The court also held that there was no legislative intent to extend the protection of the lawful activities statute to activity that is illegal under federal law.53

The Coats case demonstrates the importance of clear, ongoing communication to employees about company drug policies so that employees do not assume that consuming state-legalized marijuana will have no impact their livelihoods.

Marijuana Legalization and Unemployment Insurance Benefits

Whether an employee who has been discharged based on a positive drug test for marijuana metabolites is entitled to unemployment benefits will vary by state. For example, in Michigan, an employee who was discharged after lawfully using medicinal marijuana outside of the workplace is not disqualified from receiving unemployment benefits.54 The same holds true in Illinois, where an appellate court held that an employee is “entitled to unemployment insurance benefits after he was terminated for using illegal, non-medical marijuana outside the workplace,” as the employee was not under the influence while at work and so his recreational use of marijuana did not violate the state’s Unemployment Insurance Act, which prohibits the granting of benefits after “misconduct . . . while in the course of employment.”55

These cases stand in contrast to a recent decision in Colorado. In Beinor v. Industrial Claim Appeals,56 the Colorado Court of Appeals held that an employee who was terminated after testing positive for marijuana metabolites in violation of the employer’s zero tolerance policy could be denied unemployment insurance benefits. Notably, this employee, who was hired to sweep a street mall with a broom and dustpan, was using medical marijuana lawfully, outside of working hours. Colorado’s statute disqualifies an individual from receiving unemployment benefits after the presence of a controlled substance that was not medically prescribed was found in the individual’s system during working hours.57 The court explained that Colorado’s medical marijuana amendment created an exception to criminal prosecution and not a grant to medical marijuana users of an unlimited constitutional right to use the drug in any place or in any manner.58 The court also distinguished a medical certification which permitted the possession and use of marijuana from a medical prescription.59

Marijuana Legalization and Workers’ Compensation Insurance

The federal government and all states have enacted workers’ compensation laws for individuals injured while at work. The Federal Employees’ Compensation Act (FECA)60 provides for the payment of workers’ compensation benefits, including wages and medical benefits, to civilian officers and employees of all branches of the federal government.61 State law applies to those individuals employed by private companies or state and local government.62 Each state has a governing board which oversees its workers’ compensation system.63

The legalization of marijuana has raised two issues with regard to workers’ compensation laws. First, are employees who test positive for marijuana after being injured at work eligible to receive workers’ compensation? For example, FECA makes clear that employers do not have to continue the regular pay of an eligible employee when the employee’s injury “was . . . proximately caused by the intoxication by . . . illegal drugs.”64 Second, is an employer required to pay for medical marijuana treatments to treat that employee’s injury as part of workers’ compensation? State laws are often constructed similarly to FECA, which covers payment for medical support services, defined as “services, drugs, supplies and appliances provided by a person other than a physician or hospital.”65

A few state workers’ compensation boards have addressed these issues. In North Carolina, a carpenter who was injured at work while carrying lumber later tested positive for cannabinoids and opiates but was found to be entitled to workers’ compensation benefits.66 The employee “accidentally misstepped” and “the railing that he attempted to use to steady himself gave way.”67 The toxicology test at issue did not indicate the levels or concentrations of the drugs and the employer did not present any other “credible evidence” to show impairment, and thus could not demonstrate that the employee had been impaired at the time of his injury.68

Courts in Maine and New Mexico have addressed the issue of coverage of medical marijuana treatment and reached opposing conclusions. In Maine, in the case of Noll v. LePage Bakeries,69 the employee at issue sustained a back injury while making deliveries and requested reimbursement for (1) a medical evaluation for the purpose of obtaining a medical marijuana certificate; (2) medical marijuana; and (3) a vaporizer to use for the administration of the medical marijuana. Maine’s Workers’ Compensation Act (WCA) states that an injured worker “is entitled to reasonable and proper medical, surgical, and hospital services, nursing, medicines, and mechanical and surgical aids, as needed, paid for by the employer.”70 The employer in Noll argued that such services should not be covered under the WCA, as the employer should not be “complicit in a violation of federal law and subject to the risks of prosecution.”71 The employer also cited Maine’s medical marijuana statute in support of its argument, as the statute explicitly states that it may not be construed to require a government medical assistance program or private health insurer to reimburse an individual for costs associated with the medical use of marijuana. The employer argued that it should be considered a “private health insurer” with regard to state law.

The Workers’ Compensation Board agreed with the employer and held that the employee had not met his burden of demonstrating that the employer is not a private health insurer within the meaning of the workers’ compensation and medical marijuana statutes.72 This would likely be the finding in other states that have similar clauses in their medical marijuana statutes, such as in New Jersey, whose statute states that governmental medical assistance programs and private health insurers are not required to cover the costs of purchasing medical marijuana.73

In contrast, the New Mexico Court of Appeals has consistently held that the state’s Workers’ Compensation Act (WCA) authorizes reimbursement for medical marijuana. The WCA requires an employer to provide an employee with reasonable and necessary health care services from a health care provider.74 Courts have held that medical marijuana treatment is “reasonable and necessary medical care,”75 calling a physician-issued certification for marijuana “the functional equivalent” of a prescription.76 The courts have read the WCA together with the state’s medical marijuana statute and determined that the New Mexico legislature’s intent was that medical marijuana treatments be covered under the WCA.

An examination of these recent decisions leads to the conclusion that an employer should take a close look at his state’s workers’ compensation law and read it in conjunction with his state’s medical marijuana law in order to determine what his responsibilities are in terms of coverage of medical marijuana treatment. Additionally, if an employer suspects that an employee was impaired at the time of a work-related injury, he should not rely on a urine toxicology test alone, but should seek other evidence to show impairment, such as surveillance cameras and the statements of other employees.

Unanswered Questions

The state legalization of a drug that remains illegal under federal law has created uncertainty in various areas of law. Employment law is no exception. While courts have begun to provide a framework for analyzing these issues, much is still unclear. For example, if an employer in a non-legalization state employs an individual who lives in a neighboring state which has legalized medical marijuana and such an employee has a certification to use marijuana to treat a medical condition, what law controls?

Additionally, questions remain regarding the use of medical marijuana during leave granted by the federal Family and Medical Leave Act (FMLA)77 or a state equivalent. FMLA provides eligible employees78 with up to 12 weeks of unpaid leave each year79 when these employees are unable to work due to a serious health condition or to care for certain qualified family members. The FMLA also entitles these employees to return to the same job that they left, or an equivalent, at the end of the leave period.80 What would be the result when an employee returns from FMLA leave to a zero tolerance work place and has lawfully used medical marijuana as part of treatment for a serious medical condition? If such an employee fails a drug test and is discharged pursuant to the zero tolerance policy, the employer may face a claim that the job termination was in retaliation for that employee’s taking leave, which would be in violation of the FMLA.81

Conclusion

The regular use of marijuana on or near the workplace can lead to a loss of productivity and an increase of workplace accidents. Employers have a duty under the Occupational Health and Safety Act of 1970 to “maintain conditions or adopt practices reasonably necessary and appropriate to protect workers on the job.”82

While employers strive for a productive and safe workplace, they must also ensure that they do not violate the rights of their employees in the process. Here are a number of other steps that employers can take to ensure that they are operating within the guidelines of the applicable law:

– Know your law. Be familiar with your state’s marijuana statutes as well as any other statutes that may be applicable to your employees and you, such as human rights laws, workers’ compensation laws, and other laws referenced in this article. Ensure that your state allows “for cause” drug testing of an employee if you reasonably suspect impairment.83

– Know your obligations. Are you mandated to follow the Drug Free Workplace Act of 1988? Are your employees in “safety-sensitive” positions? Have you entered into a collective bargaining agreement (CBA) with a union? If so, is there a clause about drug testing? Is there a clause about firing for “just cause”? Does a positive marijuana test constitute “just cause” or is more needed to prove impairment at work?84

– Know your rights. While the law is still developing in this area, it appears that you can decide against hiring a prospective employee if he or she is a medical marijuana user and your state’s law does not explicitly call for an accommodation. However, you do not have the right to make an adverse employment decision based on that individual’s underlying condition.

– Make sure your employees know your policies. Draft clear policies about substance use and publicize them. Be clear about what you mean by “zero tolerance”85 and identify those positions which are classified as “safety sensitive.”86 Don’t be vague – include policies specifically relating to marijuana, including off-duty use of marijuana, so that all employees are clear as to how to stay in compliance.87

Undoubtedly, courts will continue to address these issues. However, until the law surrounding legalized marijuana is well-settled, it is important to be well-versed in your state’s developing law and to educate your employees.

Endnotes

  1.   NORML, State Information, http://norml.org/states (last visited Jan. 27, 2016).
  2.   G.M. Filisko, Weed-Whacked: Employers and Workers Grapple with Laws Permitting Recreational and Medical Marijuana Use, 101 A.B.A. J. 47 (2015).
  3.   Id.
  4.   Schedule I drugs are those “with no currently accepted medical use and a high potential for abuse. Schedule I drugs are the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Drug Enforcement Administration, Drug Scheduling, available at http://www.dea.gov/druginfo/ds.shtml (last visited Jan. 27, 2016).
  5.   21 U.S.C. § 812 (2015).
  6.   AssurexX Global, Workplace Impacts of Marijuana Legalization at 6, citing Quest Diagnostics Drug Testing Index. available at http://a15777.actonservice.com/acton/attachment/15777/f-0010/1/-/-/-/-/Assurex_Global_Medical_Legalization_Marijuana_in_Workforce.pdf (last visited Jan. 27, 2016).
  7.   41 U.S.C. § 81 (1988).
  8.   Contracts must exceed $25,000 for the Act to be applicable to federal contractors. See Alabama Department of Labor, Drug-Free Way to Be in Alabama at 27, available at https://labor.alabama.gov/docs/guides/wc_drugfree.pdf(last visited Jan. 27, 2016).
  9.   Id.
  10.   AssureX Global, supra n.6 at 8.
  11.   Given the large number of occupations that fit within this role, it is very difficult to find one definition of “safety sensitive” that is generally applicable. In fact, not all states specifically define “safety-sensitive.” The EEOC has explained that employers who designate positions as “safety-sensitive” must be able to show that an employee’s inability or impaired ability to perform job-related tasks could result in a direct threat. See Paula Barran, So Which Positions are Safety Sensitive? DJC Oregon, May 23, 2008, available at http://djcoregon.com/news/2008/05/23/so-which-positions-are-safety-sensitive/ (last visited Jan. 27, 2016).
  12.   AssureX Global, supra n.6 at 11.
  13.   Gabrielle M. Wirth & Cherise Latortue, Practically Accommodating Medical Marijuana – Not an Impossibility. Orange County Bus. J., Dec. 10-16, 2012, available at https://www.dorsey.com/newsresources/publications/2012/12/practically-accommodating-medical-marijuana–not (last visited Jan. 27, 2016).
  14.   Id.
  15.   Id.
  16.   Kayla Goyette, Legalizing Marijuana: State and Federal Issue: Recreational Marijuana and Employment: What Employees Don’t Know Will Hurt Them, 50 Gonz. L. Rev. 337, 344 (2014).
  17.   Chandler v. Miller, 520 U.S. 305, 313-14 (1977), quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989).
  18.   42 U.S.C. §§ 12101-213 (2013).
  19.   A qualified individual is defined as an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. § 12111(8) (2013). A “reasonable accommodation” may include making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations. 42 U.S.C. § 12111(9) (2013).
  20.   42 U.S.C. § 12102(1) (2013).
  21.   42 U.S.C. § 12112(a) (2013).
  22.   An “employer” is defined by the ADA as a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each 20 or more calendar weeks in the current or preceding year, and any agent of such person. There are exceptions for the United States, a corporation wholly owned by the government of the United States, or an Indian tribe or a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of title 26. 42 U.S.C. § 12111(1)(5)(A-B) (2013).
  23.   Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors including (i) the nature and cost of the accommodation needed; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the employer, the overall size of the business with respect to the number of employees, and the number, type, and location of its facilities; and (iv) the type of operation or operations, including the composition, structure, and functions of the workforce, the geographical separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer. 42 U.S.C. § 12111(10) (2013).
  24.   U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, available at http://www.eeoc.gov/policy/docs/accommodation.html (last visited Jan. 27, 2016).
  25.   42 U.S.C. § 12111(6)(A) (2013).
  26.   Id.
  27.   230 P3d 518 (Or. 2010).
  28.   Id. at 535 (stating that the exclusion under the state statute “for the use of a drug taken under supervision of a licensed health care professional is virtually identical to an exclusion in the definition of illegal drugs found in the ADA”).
  29.   Id.
  30.   Id. at 533.
  31.   174 P.3d 200 (Cal. 2008).
  32.   Emerald Steel, supra note 27 at FN 7, citing Ross, id., at 204.
  33.   Joseph H. Yastrow, A Survey of Medical Marijuana Laws Impacting the Workplace at 8, citing N.Y. PUB. HEALTH LAW §§ 3360 to 3369-d (McKinney), § 3369; N.Y. COMP. CODES R. & REGS. tit. 10, § 1004, § 1004.18, available at http://www.americanbar.org/content/dam/aba/events/labor_law/am/2015/yastrow.authcheckdam.pdf (last visited Jan. 27, 2016).
  34.   Hunton & Williams LLP, Anti-Discrimination Provisions in State Medical Marijuana Laws Raise Additional Considerations for Workplace Drug Testing, available at http://www.huntonlaborblog.com/2015/01/articles/criminal-background-checks/antidiscrimination-provisions-in-state-medical-marijuana-laws-raise-additional-considerations-for-workplace-drug-testing/ (last visited Jan. 27, 2016).
  35.   Id..
  36.   Katarina Klenner, Attention Employers: Accommodating Marijuana Use is a Cloudy Issue, Bloomberg BNA, Sept. 3, 2015, available at http://www.bna.com/attention-employers-accommodating-b17179935521/ (last visited Jan. 27, 2015).
  37.   Jackson Lewis P.C., Webinar: Medical and Recreational Marijuana in the Workplace: Must Employers Allow It?, slide 21, available at https://vimeo.com/115202885 (last visited Jan. 27, 2016).
  38.   Id. at slide 19.
  39.   While five jurisdictions have now legalized recreational marijuana, only three of these jurisdictions – Alaska, Colorado, and the District of Columbia – explicitly permit employers to prohibit employees’ marijuana use. Jackson Lewis P.C., supra n.37 at slide 13.
  40.   695 F.3d 428 (6th Cir. 2012).
  41.   Patricia Nemeth & Deborah Brouwer, Survey Article: Employment and Labor Law, 59 Wayne L. Rev. 951, 1005 (2014), quoting Casias, 695. F.3d at 437.
  42.   257 P.3d 586 (Wash. 2011).
  43.   Id. at 594.
  44.   Id.
  45.   Id. at 595.
  46.   Ross, supra n.31.
  47.   Id. at 930.
  48.   States with such statutes include California, Colorado, Illinois, Minnesota, Montana, Nevada, New York, North Carolina, Tennessee, and Wisconsin. See National Conference of State Legislatures, Discrimination Laws Regarding Off-Duty Conduct, Oct. 18, 2010, available at http://www.ncsl.org/documents/employ/off-dutyconductdiscrimination.pdf (last visited Jan. 27, 2016).
  49.   Mont. Code Ann. §§ 39-2-313, 314 (2004).
  50.   N.C. Gen. Stat. § 95-28.2 (2004).
  51.   350 P.3d 849 (Colo. 2015).
  52.   Id. at 850.
  53.   Id. at 853.
  54.   Braska v. Challenge Manufacturing Co., 861 N.W.2d 289 (2014).
  55.   William Bogot and Maura Neville, Inside This Issue: Rethinking Drug-Free Workplace Policies: Will Your Zero-Tolerance Policy Go Up in Smoke? 29 CBA record 30, 32 (2015), citing Eastham III v. The Housing Authority of Jefferson County, et al., 2014 Ill. App (5th) 130209. The court did not rule that the employer wrongfully discharged the employee, stating that an “employee’s conduct may be sufficient to justify his discharge without constituting misconduct sufficient to disqualify him from benefits under the Unemployment Insurance Act.” Eastham, id., at 28.
  56.   262 P.3d 970 (Colo. CT. App. 2011).
  57.   Colo. Rev. Stat. § 8-73-108_5)(e)(IX.5). The court distinguished an authorization to use medical marijuana from a medical prescription, stating, “underlying claimant’s argument is an assumption that his authorization to use medical marijuana is equivalent to a medical prescription. This assumption is inaccurate. A certificate isn’t a prescription. Doctors are prohibited from prescribing marijuana under federal law.” Beinor, 262 P.3d at 973.
  58.   Id. at 976.
  59.   Idat 973-74.
  60.   5 U.S.C. 8101 et seq. (2015).
  61.   U.S. Dept. of Labor, Workers Compensation, available at http://www.dol.gov/general/topic/workcomp (last visited Jan. 27, 2016). The federal government has also established workers’ compensation programs for energy employees and longshore and harbor workers as well as a black lung benefits plan. Id.
  62.   Id.
  63.   Texas allows employers within its state to “opt out” of the workers compensation system but, if the employers choose to do so, they face higher civil liability when an employee is injured at work.
  64.   20 C.F.R. § 10.220(f) (2016).
  65.   20 C.F.R. § 10.5(p) (2016).
  66.   Moore v. Sullbark Builders, Inc., 680 S.E.2d 732 (N.C. Ct. App. 2009).
  67.   Id.. at 736.
  68.   Id. See also Desert Valley v. Hurley, 96 P.3d 739 (Nev. 2004). In Nevada, there is a presumption that an employee workplace injury is caused by intoxication of an employee fails a toxicology test but this presumption is rebuttable.
  69.   2015 ME Wrk. Comp. LEXIS 145 (2015).
  70.   39-A M.R.S.A. § 206 (2015).
  71.   Noll, supra note 69. at *5.
  72.   Id. at *10-11.
  73.   Joshua L. Weiner, THANK YOU FOR (NOT) SMOKING: Whether New Jersey Employers Will Be Required to Accommodate Medical Marijuana Users in the Workplace, available at http://www.hillwallack.com/?t=40&an=44633&format=xml&p=5309 (last visited Jan. 27, 2016).
  74.   N.M.S.A. 1978 § 52-1-49(A) (2015).
  75.   See Vialpando v. Ben’s Automotive Services et al., 331 P.3d 975 (N.M. Ct. App. 2014), at 979, cert.den.,331 P.3d 924 (2014).
  76.   Id. at 978. See also Maez v. Riley Industrial et al., 347 P.3d 732 (N.M. Ct. App. 2015).
  77.   29 U.S.C. § 2601 et seq. (2015).
  78.   U.S. Dept. of Labor, Wage and Hour Division, FMLA Frequently Asked Questions, available at http://www.dol.gov/whd/fmla/fmla-faqs.htm (last visited Jan. 27, 2016). The FMLA applies to all public agencies and local education agencies as well as private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. Id.
  79.   Id.
  80.   Id..
  81.   Lawrence P. Postol, ADA, FMLA and Medical Marijuana: How Do They Mix? Feb. 26, 2015, available at http://www.laborandemploymentlawcounsel.com/2015/02/ada-fmla-and-medical-marijuana-how-do-they-mix/ (last visited Jan. 27, 2016). Employers are prohibited from interfering with, restraining, or denying the exercise of FMLA rights. U.S. Dept. of Labor, supra n.78.
  82.   Jennan A. Phillips et al., Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers, available at http://www.acoem.org/uploadedFiles/Public_Affairs /Policies_And_Position_Statements/ Guidelines/Guidelines/Marijuana%20JointGuidance%202015.pdf, citing U.S. Dept. of Labor. Occupational Health and Safety Administration. OSH Act of 1970. Sec. 5. Duties, available at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=3359&p_table=OSHACT(last visited Jan. 27, 2016).
  83.   AssureX Global, supra n.6 at 8.
  84.   Filisko, supra n.2 at 3.
  85.   Klenner, supra n.36.
  86.   Worth et al., supra n.13 at 2.
  87.   Phillips et al., supra n.82 at 463.

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