1. What’s the Deal with Marijuana
What’s the Deal with Marijuana? The Ever-Changing Legal Landscape of Marijuana and How it Affects the Workplace
Ruth A. Rauls, Esq., Partner
Saul Ewing Arnstein & Lehr
September 27, 2019

2. How Medical Marijuana Affects the Workplace
Hiring and firing
Drug testing
Marijuana use on and off premises
On-site possession
Training
Security

3. Increased Number of Patients and Users
In 2018, there were estimated to be between 3.8 and 4.5 billion dollars in medical marijuana sales in the U.S.*
It is estimated that in the year 2020, medical marijuana sales in the U.S. will reach between 4.9 and 6.1 billion dollars*
*Source:

4. REASONABLE AccommodationS

5. What is a reasonable accomodation?
A reasonable accommodation is any change to the application or hiring process, to the job, to the way the job is done, or the work environment that allows a person with a disability who is qualified for the job to perform the essential functions of that job and enjoy equal employment opportunities.
Accommodations are considered “reasonable” if they do not create an undue hardship to the employer.

6. The Americans with Disabilities Act
Under the ADA, current illegal drug users, which include drugs that are unlawful under the Controlled Substances Act, are not “individuals with disabilities.”
Because marijuana remains illegal under the Controlled Substances Act, anyone using marijuana, medical or otherwise, is a “current” illegal drug user that is not entitled to a reasonable accommodation under the ADA. 42 U.S.C. §12114(a).

7. States with Medical Programs
Prohibit Discrimination:
Explicitly Allow Employers to Prohibit Use and Intoxication:
Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Pennsylvania, Rhode Island, West Virginia
Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Maine, Massachusetts, Michigan, Montana, New Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Washington, West Virginia
Do NOT Prohibit Discrimination:
Montana, Ohio

8. Recent Court Decisions

9. Barbuto v. Advantage Sales and Marketing, LLC*
Massachusetts Supreme Court found allowing off-site use of medical marijuana, despite an employer’s drug-free workplace policy, may be a reasonable accommodation under MA disability discrimination law, if it is not an undue hardship on the employer’s business.
*477 Mass. 456, 78 N.E.3d 37 (2017)

10. Cotto v. Ardagh Glass Packing, Inc.*
Federal court in New Jersey held that an employer did not discriminate against an employee on the basis of a disability when it refused to waive a drug-testing requirement as an accommodation for the employee’s medical marijuana use.
“Nothing in this act shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace.”**
But…
*No (D.N.J. Aug. 10, 2018); **N.J.S., Title 24 § 6I-14

11. Wild v. Carriage Funeral Holdings, Inc., et al.*
The employee (plaintiff) failed a drug test after an accident while at work –no evidence of impairment. He was fired for testing positive.
The plaintiff filed a lawsuit alleging the defendants violated the New Jersey Law Against Discrimination because he had a disability (cancer) and was legally treating that disability in accordance with his physician’s directions and in conformity with the state’s medical marijuana law (the Compassionate Use Act).
The Appellate Division held that just because the Compassionate Use Act states that an employer is not required to accommodate a medical marijuana user, the plaintiff could still sue his employer under the anti-discrimination law for his termination.
*A T3 (App. Div. Mar. 27, 2019)

12. Noffsinger v. SSC Niantic Operating Co., LLC*
First came to court on a motion to dismiss:
The employer argued that federal law exemption allowed it to discriminate against an employee.
Federal court in Connecticut found discrimination is still unlawful in absence of an actual federal requirement.
Even though Connecticut statute does not expressly create right of action for discrimination, an individual discriminated against for using medical marijuana can sue to protect her rights.
* 2017 WL (D. Conn. 2017).

13. Noffsinger v. SSC Niantic Operating Co., LLC* (cont’d)
Next came to court on a motion for summary judgment:
The employer argued it cannot be liable because CT law creates an exception if discrimination "is required by federal law or required to obtain federal funding.”
The employer (a federal contractor) contended that the federal Drug-Free Workplace Act (DFWA) barred it from hiring Noffsinger. 
The court rejected this, stating that the DFWA does not require drug testing, "nor does the DFWA prohibit federal contractors from employing someone who uses illegal drugs outside of the workplace, much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law."
*338 F. Supp. 3d 78 (D. Conn. 2018)

14. What about adult use?
Remember – these statutes and court decisions are in the context of medical marijuana.
Adult use of marijuana does not fall under the same reasonable accommodation/disability discrimination analysis.
BUT
there may be language in the statute that provides guidance or creates an obligation for employers; OR
state or city statutes that prevent drug testing for marijuana.

15. Drug testing

16. Why is drug testing so difficult?
Marijuana is detectable in blood and urine for up to a month, and detectable in hair much longer.*
THC is stored in lipid (fat) compartments throughout the body.*
Consistent use will result in accumulation of THC in fatty tissues and the more that accumulates will result in slower elimination rates.*
So… if an individual consistently uses marijuana legally, they will likely always test positive on a drug test.
*Source: Karen E. Moeller, PharmD, BCPP, et. al., Clinical Interpretation of Urine Drug Tests: What Clinicians Need to Know About Urine Drug Screens, Mayo Foundation for Medical Education and Research Mayo Clin Proc. 2017;92(5): , available at

17. Timing Pre-Employment During Employment
Be careful of state law prohibitions
During Employment
Random drug testing
“Safety sensitive” positions
“For cause”
Post-accident/incident testing

18. Prohibition Against Testing for Marijuana - NYC
April 9, 2019, New York City Council passed law to prohibit employers from testing for marijuana for job applicants.
Exceptions - police, CDL drivers, individuals who supervise kids, medical patients or other vulnerable persons, anyone employed in a position of health or safety, employees of federal contractors, and certain federally-preempted positions.
If a CBA addresses pre-employment drug testing, then that agreement will control.
Nothing in this legislation would stop an employer from testing an employee whom it reasonably suspects is under the influence of marijuana. This law will not enable employees to come to work high.

19. Prohibition Against Testing for Marijuana - Nevada
On June 5, the Nevada Governor signed a new law that makes it “unlawful for any employer in [Nevada] to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.”
Exceptions for prospective firefighters, emergency medical technicians, jobs that require an employee to operate a motor vehicle and for which federal or state law requires the employee to submit to a screening test, other safety-sensitive positions (as the employer may determine).
Will not apply to federally-funded jobs, or if the law otherwise conflicts with federal law.
A collective bargaining agreement will trump this new law.

20. During Employment
Noffsinger, 338 F. Supp. 3d 78 (D. Conn. 2018) (citations omitted) – “The [Drug-Free Workplace Act] does not require drug testing. Nor does the DFWA prohibit federal contractors from employing someone who uses illegal drugs outside of the workplace, much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law.”
Wild, A T3 (App. Div. Mar. 27, 2019) – An employee was in an accident, but told he was not under the influence per treating physician. The employer forced the employee to take a test anyway, which he of course failed.
Whitmire v. Wal-Mart Stores Inc., No. Cv (D. Ariz. Feb. 7, 2019) – An employee is tested after a workplace accident pursuant to policy, and fails. The judge finds the application of the policy still could amount to discrimination under state medical marijuana law.

21. A Word About Reasonable Suspicion
Proceed cautiously.
Best practices:
Requiring two supervisors to observe behavior raising suspicion of drug or alcohol use. Document!
Ensure consistency in how employees are treated.
Maintaining confidentiality to the extent possible.
Giving the employee an opportunity to provide any information that management should consider before making its decision if the test results are positive.

22. Policies - Generally
Employers can establish “Drug-Free Workplace” policies.
However, depending on the statutory language, employers may have to accommodate off-site marijuana use as a reasonable accommodation.
Be careful about discriminating. A policy should include accommodation language if required by state statute AND restricts employment decisions.
Supervisors and managers should be trained in detecting current intoxication.

23. Use and Possession in the Workplace

24. What about on-site use?
Employer can prohibit employees from using marijuana in the workplace during work hours.
Employer can prohibit employees from being under the influence of marijuana in the workplace during work hours.
Challenge will be – identifying employees who are working “under the influence.”

25. What about on-site possession?
Employers can prohibit the possession of marijuana at work.
Employers can prohibit the distribution or manufacture of marijuana at work.
Employers can tell employees they cannot store marijuana in lockers or other workspaces.
Prevent legal users from being targets for theft by others.

26. Questions? Ruth A. Rauls, Esq. Partner Princeton, NJ +1.609.452.5049

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