By Tyler Freiberger,
While attitudes about Marijuana and state laws controlling the drug continue to shift toward recreational use, the common advice has been that most employers may still terminate employees for even medical use of the drug unless restricted in particular states. In fact, typically the rule has been that if you are a government contractor, you are required to prohibit its use by your employees. While many states have moved toward protecting medical, or even recreational use of marijuana during employees’ off-time, no state prohibits employers for terminating employees to comply with federal requirements. But what that means is becoming murky.
Regardless of the state laws controlling, most federal contractors are subject to the rather toothless Drug-free Workplace Act, which remains unchanged in recent years. While the penalties for violating the act could end in disbarment, it is particularly easy to comply with; write a section in your employment handbook saying not to do drugs and threaten to penalize people that do. But the loose requirements of the Act are now causing quite the employment lawyer’s headache. Does the Act actually require contractors to prohibit off the job drug use?
At least one Federal Court says no. Connecticut is one of several states that not only allows registered users to obtain medical marijuana, but it actively prohibits discrimination against medical use “ [U]nless required by federal law or required to obtain funding…” When one Nursing home refused to hire an employee whom tested positive for the drug, the employer argued it was subject to the Drug-Free Workplace Act and thus was required to terminate drug users and in this case, refuse to hire one. The court held federal law does not preempt PUMA’s prohibition on employers’ firing or refusing to hire qualified medical marijuana patients, even if they test positive on an employment-related drug test because the act does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty.
This Connecticut case is currently on appeal. While in my humble opinion may be reversed as it requires a very narrow reading of the Federal Drug Act, and a very broad reading of discrimination (typically saying I don’t want to hire employees that break the federal law is seem as a darn good non-discriminatory reason to fire someone), contractors should certainly have their attention on this issue as it unravels.
About the Author:
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.