High Times: Impact of Changing Marijuana Laws on the Workplace

September 2016
Willie C. Ellis, Jr., Phillip S. Oberrecht

Background on legalization

Historically

In 1937, Congress passed the Marihuana Tax Act.1  Although the Act did not criminalize marijuana use, it regulated, and imposed taxes on, that use.2 This Act was overturned in 1969 in Leary v. United States,3  and was repealed by Congress the next year.4

Over time, marijuana use was further restricted, culminating in the Federal Controlled Substances Act (“CSA”) in the 1970’s, which established schedules for ranking substances according to their dangerousness and potential for addiction.5 Under the CSA, narcotics are placed in one of five Schedules.6 Marijuana is categorized as a Schedule I drug in the CSA.7 Under the CSA, drugs in this category have a (1) “high potential for abuse,” (2) “no currently accepted medical use in treatment in the United States,” and a (3) “lack of accepted safety for the use of the drug under medical supervision.”8 The Food and Drug Administration (“FDA”) has stated that marijuana has no known medical benefits, and therefore, does not condone its use for medical purposes.9 Additionally, under Gonzales v. Raich,10 the U.S. Supreme Court held that the federal government’s classification of marijuana in the CSA declares the drug illegal even in a state that allows the medical use of marijuana.11 

Yet this federal view and classification of marijuana did not prevent states from considering, and eventually enacting, laws permitting its use for medical purposes. In 1996, California was the first state to approve the use of marijuana for medical purposes with the enactment of the Compassionate Use Act (“CUA”).12 This ended the 59-year designation as an illicit substance with no medical value.13 

Current state of the law and developments

Marijuana remains illegal under federal law for any reason, medicinal or recreational, as it is still listed as a Schedule I drug under the CSA.14 

Notwithstanding, as of June 2016, twenty years later, forty-one states have legalized marijuana to some degree.15 The increase in legalization is in large part because of public support for the decriminalization of marijuana. Surveys conducted by the Pew Research Center and Gallup show between 53% and 58% percent of Americans support legalizing marijuana.16 It was the third consecutive year a majority of Americans polled said they supported legalization.17 Compared to similar polls conducted in 2010 and 2013, support for decriminalization increased by eleven percentage points.18 

Despite an apparent sea change in attitude about marijuana use in many states, the federal government has not allowed an exception for marijuana use authorized by state law.19 

Recreational Marijuana states

Four states, i.e., Alaska, Oregon, Colorado, and Washington, as well as Washington D.C. have passed laws legalizing recreational marijuana.20 However, the amount a person may possess at one time varies by state.21 

In addition to these four states, thirteen states and the District of Columbia have decriminalized the possession of marijuana.22 Thus, in these states, possession of a small amount (typically about 1 ounce or less) is not a crime or punishable by only civil fines between $25.00 and $600.00.23,24

Medical marijuana states

Twenty-four states have enacted laws pertaining to the use of medical marijuana, including Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.25 The District of Colombia also allows medical marijuana use.26 The diseases and conditions for which marijuana can be prescribed vary by state.27 

Low-level THC states

Seventeen states (mostly southern states) have adopted limited access marijuana product laws, allowing only therapeutic cannabis that is low in THC and high in CBD.28 These states include Alabama, Florida, Georgia,29 Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming.30 Restrictions and the diseases and conditions of which the high CBD oil can be used to treat vary by state.

States considering or expanding the legalization of marijuana in 2016

The following nine states are expected to consider and/or expand the legalization of Marijuana in a 2016:31 

Arizona: Seeking legalize the possession and consumption of marijuana for adults 21 and older, and allow them to grow up to six plants in their homes;

California: Seeking to legalize the possession and consumption of marijuana for adults 21 and older;32 

Florida: Seeking legalize medical cannabis;

Maine: Parts of the state have already legalized marijuana for medical use, but a new bill seeks to legalize cannabis entirely; 

Massachusetts: Seeking to legalize and regulate like alcohol;

Michigan: Seeking to legalize the recreational use of marijuana for adults over the age of twenty one, and allow people to grow twelve marijuana plants;

Nevada: Seeking to legalize marijuana for recreational use and proposing that cannabis be regulated like alcohol;

Rhode Island: Seeking to legalize recreational use; and

Vermont: Seeking to legalize marijuana;

Landscape of marijuana legislation in the U.S.33

Comparison of uses and components of medical marijuana

Recreational marijuana v. medical marijuana v. low-THC CBD

Tetrahydrocannabinol (THC) and cannabidiol (CBD) are two types of cannabinoids found naturally in the resin of the marijuana plant, Cannabis Sativa.34 Both of these substances interact with the cannabinoid receptors found in the human body, but the types of effects brought about by these compounds are different.35 For this reason, CBD is more often used as a medical treatment than THC.36 

What is THC?

THC is the main psychoactive component of the marijuana plant.37 It is the primary agent responsible for creating the “high” feeling associated with marijuana use.38 This compound works by imitating the effects of anandamide, a neurotransmitter produced naturally by the human body to help modulate sleeping and eating habits, as well as the perception of pain.39 

What is CBD?

CBD has the same chemical formula as THC, but the atoms are arranged differently.40 This slight variance causes THC to create a psychoactive effect while CBD lacks such an influence.41 

The Food and Drug Administration of the United States considers hemp oil, which contains CBD, to a dietary supplement and therefore it is legal to import, sell, purchase and consume hemp oil in all 50 states.42 

The effects of CBD include: reduction of psychotic symptoms, relief from convulsions and nausea, decreased anxiety, decreased inflammation.43 Some recognized medical applications for CBD, include: schizophrenia, reduce psychotic symptoms, social anxiety disorder – lower anxiety, depression, and side effects of cancer treatment – decrease pain and nausea while stimulating appetite.44 

What does marijuana legislation mean for employers? 

The shift in marijuana laws and drug policy, as well as the inconsistency between federal and state laws has created a haze of concern for many employers about workplace testing.45 Relax, the sky is not falling. Employers with “zero tolerance” drug use policies in most states (including those that have decriminalized marijuana use) can still refuse to hire or terminate employees who fail a drug test for marijuana, with or without medical authorization.46 Additionally, marijuana use or possession in the workplace remains grounds for termination.47 In addition, in most states, employers with federal contracts are under no obligation to accommodate medical use, which remains illegal under federal law.48 Moreover, employers may also regulate employees who work in safety sensitive jobs such as those that operate heavy machinery.49 

Federally regulated businesses with zero tolerance policies50

Employers in states in which marijuana has been legalized must first determine whether their workplace is regulated by The Drug Free Workplace Act (the “Drug Free Act”).51 The Drug Free Act requires that all federal grant recipients and federal contractors adopt a zero tolerance policy at their workplaces and certify to the federal government that their workplaces are drug free.52 In addition to this certification, these employers generally must:

1. Develop and publish for employees a written policy and ensure that employees read and consent to the policy as a condition of employment;

2. 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;

3. Require that all employees notify the employer or contractor within five days of any conviction for a drug offense in the workplace; and

4. Make an ongoing good faith effort to maintain a drug-free workplace.53 

The Drug Free Act does not require that employers conduct mandatory drug tests.54 

Non-federally regulated businesses with zero tolerance policies 

Employers that are not federally regulated can also breathe easy, as cases decided in states where marijuana use is legal have held an employer can enforce its zero tolerance policies.55 

For instance, in Roe v. Teletech, the Washington Supreme Court held there was no public policy right under Medical Use of Marijuana Act requiring employers to accommodate medical marijuana use even when it is outside of the workplace, and dismissed plaintiff’s wrongful termination claim.56 The Washington Supreme Court noted that Washington’s Medical Use of Marijuana Act was passed only to provide an affirmative defense to qualifying patients, caregivers and physicians for conduct that is otherwise prohibited by law, such as a defense to a violation of a local ordinance or state law prohibiting the personal possession or use of the drug.57 

In Emerald Steel Fabricators v. Bureau of Labor & Industries,58 the Oregon Supreme Court held employers are not required to accommodate the use of medical marijuana under the Oregon Medical Marijuana Act.59 In that case, the Court held that an employer was justified in revoking an employee’s offer of permanent employment after he notified the employer of his medical marijuana use.60 Following termination, the employee argued that he was discharged because of a disability which the employer failed to accommodate.61 In ruling in favor of the employer, the Court held that the employee was not protected and that the United States Controlled Substances Act preempted the Oregon statute authorizing use of medical marijuana.62 

In Casias v. Wal-Mart Stores, Inc.,63 a Michigan federal district court ruled that an employee who was terminated by Wal-Mart after testing positive for validly obtained medical marijuana64 stated no legal claims for wrongful discharge.65 The court accepted Wal-Mart’s argument that Michigan’s medical marijuana law does not regulate private employment;66 rather, it merely provides a potential affirmative defense to criminal prosecution or other adverse action by the state.67 The court rejected the plaintiff’s argument that the law created a new protected employee class, which “would mark a radical departure from the general rule of at-will employment in Michigan.”68 The decision of the Michigan federal district court was affirmed by the U.S. Court of Appeals for the Sixth Circuit the following year.69 

Some employers have gone a step further and have fired or failed to hire employees because they admitted to using medical marijuana at home or because they failed a drug test because of the medical marijuana, even though the employees were never actually found to be impaired or under the influence of drugs at work. In challenging such employment actions, in Ross v. RagingWire Telecommunications, Inc.,70 the California Supreme Court ruled that it is not discrimination to fire an employee for using medical marijuana.71 The court held that where a new employee, whose physician recommended he use marijuana to treat chronic pain, was fired when a pre-employment drug test required of new employees revealed his marijuana use, a disability discrimination statute did not require the employer to accommodate the employee’s marijuana use,72 and the employee did not state a cause of action for termination in violation of public policy.73 

In Johnson v. Columbia Falls Aluminum Company,74 the Montana Supreme Court ruled, in an unpublished decision, that an employer is not required to accommodate an employee’s use of medical marijuana under the federal ADA or the Montana Human Rights Act.75 

In Coats v. Dish Network, LLC,76 Brandon Coats argued that Dish Network violated Colorado law by firing him for using medical marijuana after work.77 Mr. Coats is a quadriplegic who has used a wheelchair since he was a teenager. He obtained a medical marijuana license in 2009.78

The trial court dismissed Coats’ claim that he had been wrongfully terminated after finding that medical marijuana use is not lawful under Colorado state law.79 In a split decision, the majority of the Court of Appeals upheld the trial court’s decision.80 The Supreme Court of Colorado affirmed, as the Court found the term “lawful” as it is used in Colorado law is not restricted in any way, and declined to engraft a state law limitation onto the term. Therefore, an activity such as medical marijuana use that is unlawful under federal law is not a “lawful” activity under Colorado law.81 

Notably, the cases where employers have prevailed in enforcing their zero tolerance drug policies typically include: (1) a clear and unambiguous drug-free policy; and (2) “at will” employment.82 Conversely, where the employee has been a union employee and could only be terminated for “just cause” there has been a difference in outcomes.83 

Safety-sensitive positions

If an employer is not required to comply with the Drug Free Act, such employer may still institute a zero tolerance policy for those workers in “safety-sensitive” positions.84 A “safety-sensitive” position, generally, is one in which an employee is responsible for the safety of herself or others.85 Positions that fit into this designation would include those involving driving or the use of machinery, among many others.86 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.87 

Caution: There are growing exceptions to the general rule

Even if an employer is mandated or chooses to adopt a zero tolerance policy, such employer may still encounter certain challenges regarding enforcement inherent in the application of laws and the evolving legal landscape.88 

For example, the Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals on the basis of disability,89 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.90 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.91 Covered employers 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.92 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.”93

Courts have considered whether the ADA requires employers to accommodate employees’ legal use of medical marijuana to treat serious medical conditions.94 The question is whether an employer can take an adverse action against an employee 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.95 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.96 

Some states have enacted laws which speak specifically to medical marijuana accommodation.97 For example, in New York, a certified patient “shall be deemed to be having a ‘disability’ under the state’s human rights law.”98 Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada also have laws which contain either anti-discrimination or reasonable accommodation provisions applicable to employers.99 In Arizona, Delaware, Minnesota, and Nevada, employers cannot take an adverse employment action based solely on an employee’s participation in a medical marijuana program “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,” such as the Drug Free Workplace Act of 1988.100

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 competing regulations before acting.101 

Complications with drug testing: What are you testing for?

Many employers have workplace drug policies that require employees to abstain from marijuana use. To enforce these policies, employers may require employees to pass a pre-employment drug test through urinalysis.102 Employers may also require employees to be tested for drugs throughout the course of their employment.103 The ADA does not limit an employer’s ability to perform drug tests in order to determine whether the employee is engaging in illegal use of drugs.104 

Employers may also want to reconsider how to conduct drug tests for marijuana. Urinalysis is the common test for marijuana use.105 Urinalysis cannot, however, determine current impairment, but in some cases can determine if a person has used marijuana in the previous two to six weeks.106 As a result, an individual could test “positive” for marijuana a month or more after usage, but a positive test does not mean the person was under the influence of marijuana at the time of the positive test.107 Urinalysis tests are typically pass/fail.108 Additionally, they do not measure THC itself, but a non-psychoactive byproduct of THC created in the liver than can linger for weeks and even months.109 

As an alternative, some medical marijuana advocates suggest a model workplace policy whereby the employer would tests the blood or saliva, instead of the urine, of an employee.110 Blood tests are a much more accurate indicator for active THC impairment.111 Marijuana can also be detected using hair and sweat. However, like in urine, there is currently no “under the influence” limit for the presence of marijuana for these tests.112   

Conclusion and policy considerations 

The marijuana and drug-testing laws continue to evolve. As public opinion shifts across the country favoring legalization of marijuana, and regulating marijuana more like alcohol, it is likely that employers will be subject to greater scrutiny for drug testing employees for marijuana including at-will employees. Therefore, employers should at a minimum consider the inherent tension between employer and employee rights, and the desire to have a safe and drug-free workplace. They should also consider whether the import of such policies is to prevent use, possession, and impairment at work or to prohibit employees from using marijuana at any time.

Employers seeking to discipline and/or terminate employees under the influence of marijuana at work may want to consider taking the following actions:

1. Consult an attorney familiar with the law in the state where the workplace policy will be applied;

2. Review your company’s current workplace policies pertaining to drug use to ensure they are clear and unambiguous;

3. Reevaluate the circumstances when the employer will conduct pre-employment, random, or for cause drug testing;

4. Reevaluate what form of drug testing will be conducted for marijuana use; and

5. Closely monitor legislative and legal developments pertaining to marijuana.



End Notes
1 Marihuana Tax Act of 1937, Pub. L. No. 238, §§ 1-14 (1937), available at http://www.druglibrary.org/schaffer/hemp/taxact/mjtaxact.htm.
2 Id. 
3 Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).
4 Comprehensive Drug Abuse Prevention and Control Act of 1970, Section 1101(b)(3), Pub. L. No. 91-513, 84 Stat. 1236. 1292 (1970); repealing the Marihuana Tax Act which had been codified in Subchapter A of Chapter 39 of the Internal Revenue Code of 1954.
5 21 U.S.C. § 812(c)(Schedule I)(c)(10) (2006). 
6 21 U.S.C. § 812(a) (2006).
7 21 U.S.C. § 812(c)(Schedule I)(c)(10) (2006).
8 See § 812(b)(1)(A-C); see also Drug Enforcement Administration, Drug Scheduling, available at http://www.dea.gov/druginfo/ds.shtml.
9 Press Release, FDA, Inter-Agency Advisory Regarding Claims That Smoked Marijuana Is a Medicine (Apr. 20, 2006), available at http://www.fda.gov/newsevents/newsroom/PressAnnouncements/2006/vcm108643.htm
10 Gonzales v. Raich, 545 U.S. 1, 29 (2005).
11 As a result of the Gonzales ruling, federal law enforcement officials may prosecute medical marijuana patients, even if they grow their own medicine and even if they reside in a state where medical marijuana use is protected under state law. The Court further indicated that Congress and the Food and Drug Administration should work to resolve this issue.
12 Cal. Health & Safety Code § 11362.5(a)  (West 2007).
13 See, e.g., MICH. COMP. LAWS ANN. § 333.26422(2)(a) (West 2008) (stating “the National Academy of Sciences Institute of Medicine in a March 1999 report, has discovered beneficial uses for marihuana in treating or alleviating a variety of debilitating medical conditions.”) The report found that:  “scientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC, for pain relief, control of nausea and vomiting, and appetite stimulation; smoked marijuana, however, is a crude THC delivery system that also delivers harmful substances.  The psychological effects of cannabinoids, such as anxiety reduction, sedation, and euphoria can influence their potential therapeutic value. Those effects are potentially undesirable for certain patients and situations and beneficial for others. In addition, psychological effects can complicate the interpretation of other aspects of the drug’s effect.”  MARIJUANA AND MEDICINE: ASSESSING THE SCIENCE BASE, 179 (Janet E. Joy, Stanley J. Watson, Jr., John A. Benson, Jr., eds., 1999). “Further studies have found that marijuana is effective in relieving some of the symptoms of HIV/AIDS, cancer, glaucoma, and multiple sclerosis.”
14 See generally 21 U.S.C. § 812 (2006); 21 U.S.C. § 844 (2006); Raich, 545 U.S. at 57. In late August 2013, the U.S. Department of Justice announced an update to their marijuana enforcement policy. The statement reads that while marijuana remains illegal federally, the USDOJ expects states like Colorado and Washington to create “strong, state-based enforcement efforts.... and will defer the right to challenge their legalization laws at this time.” The department also reserves the right to challenge the states at any time they feel it’s necessary.  
15 Since California’s adoption of the CUA in 2006, the following states have followed California’s initiative: Alaska, Colorado, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Washington, Oregon, Rhode Island, Vermont, and Michigan. See Alaska Stat. § 17.38.010 (West 2008); Cal. Health § Safety Code § 11362.5(b)(1)(A) (West 2007); Colo. Rev. Stat. Ann. § 18-18-406 (West 2001); Del. Code. Ann. tit.16, §§ 4901a-4928a (West 2014); Haw.Rev. Stat. § 329-122 (West 2007); Me. Rev. Stat. Ann. tit.22, §§ 2421 – 2430-B (West 2004); Md. Code Ann., Health §§ 13-3301 to 13-3316 (West 2014); Mich. Comp. Laws § 333.26424 (West 2008); Mass. Gen. Laws Ch. 94(D), § 2 (West 2014); Minn. Stat. Ann. §§ 152.21-152.37 (West 2015); Mont. Code Ann. § 50-46-301 (West 2007); Nev. Rev. Stat.  §§ 453A.010 - 453A.170 (West 2008); N.H. Rev. Stat. Ann. §§ 126-X:1 to –X:11 (Lexis 2014); N.J. Stat. Ann. §§ 24:6I-1 to 16 (Lexis 2015); N.M. Stat. § 26-2B-1 (West 2008); N.Y. Pub. Health  §§ 3360-3369-e (Lexis 2014); Or. Rev. Stat. § 475.300 (West 2003); R.I. Gen. Laws § 21-28.6-4 (West 2007); Vt. Stat. Ann. tit.18 § 4471 (West 2007); Wash. Rev. Code § 69.51A.005 (West 2009).
16 See http://www.pewresearch.org/fact-tank/2015/04/14/6-facts-about-marijuana/
17 Id. 
18 Id.
19 Raich, supra note 10.
20 Gene Johnson, Legalizing Marijuana: Washington Law Goes into Effect, Allowing Recreational Use of Drug, Huffington Post (Dec. 6, 2012) see http://www.huffingtonpost.com/2012/12/06/legalizing-marijuana-washington-state_n_2249238.html.
21 See 35 N. Ill. U. L. Rev. 461 (2015).
22 See https://www.whitehouse.gov/ondcp/marijuana: The states include: Connecticut, Georgia, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, Rhode Island, and Vermont.; see also http://norml.org/aboutmarijuana/item/states-that-have-decriminalized.
23 Id.
24 Twenty states and the District of Columbia have decriminalized small amounts of marijuana. This generally means certain small, personal-consumption amounts are a civil or local infraction, not a state crime (or are a lowest misdemeanor with no possibility of jail time). Decriminalization states are Alaska (also now with legal provisions), California, Colorado (also now with legal provisions), Connecticut, Delaware (enacted in 2015), Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New York, North Carolina, Ohio, Oregon, Rhode Island, Vermont and Washington (also now with legal provisions), and the District of Columbia (also now with legal provisions). Of those, six—Minnesota, Missouri, Nevada, North Carolina, Ohio (and Oregon before legalization)—have it as a low-level misdemeanor, with no possibility of jail for qualifying offenses. The other states with decriminalization policy have specified small amounts of marijuana as a civil infraction, or the like.
25 See http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx
26 See 24 Legal Medical Marijuana States and DC, Procon.Org (2013) http://medicalmarijuana.procon.org/view.resource.php?resourceID+000881
27 58 Wayne L. Rev. 103 (2012), Caught in the Crossfire: The dilemma of Marijuana “Medicalization” for Healthcare Providers. 
28
Supra note 25.
29 See http://www.legis.ga.gov/legislation/en-US/Display/20152016/HB/1. On April 16, 2015, Georgia became the 24th state to enact a medical marijuana law when Governor Nathan Deal signed legislation legalizing the use of a low-potency form of cannabis oil for medicinal uses.
30 Id. 
31 See http://www.usatoday.com/story/money/business/2015/08/18/24-7-wall-st-marijuana/31834875/; see also http://www.forbes.com/sites/jacobsullum/2015/04/09/which-states-will-legalize-marijuana-this-year-and-next/#349b2f6c1b96 stating that the Vermont Senate has approved and sent to the House a bill (SB 241) that would remove civil penalties for possession of one ounce or less of marijuana, and create and regulate a commercial market. Other states with measures to legalize marijuana pending include Arizona, Illinois, Kentucky, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island and West Virginia. In addition, constitutional amendment or initiative proposals are before legislatures in Missouri, Massachusetts and New Jersey. An Illinois study bill also is pending. Legalization bills have failed in Connecticut, Florida, Georgia, Hawaii, Maryland, New Hampshire, New Mexico and Wisconsin.
32 If California alone has a change in law, one-sixth of U.S. employees will live in states where recreational marijuana is legal
33 http://www.pewresearch.org/fact-tank/2015/04/14/6-facts-about-marijuana/
34 See http://www.cancer.gov/about-cancer/treatment/cam/patient/cannabis-pdq#section/all
35 Id.
36 See http://www.cannabis-med.org/data/pdf/2001-03-04-7.pdf.
37 See http://www.accessdata.fda.gov/drugsatfda_docs/label/2006/018651s025s026lbl.pdf
38 Id. 
39 Supra note 37.
40 Id.
41 Id.
42 See more at http://medicalmarijuanainc.com/overview-of-u-s-medical-marijuana-law/#sthash.5iKhIixE.dpuf 
43 Borgelt, LM; Franson, KL; Nussbaum, AM; Wang, GS (February 2013). “The pharmacologic and clinical effects of medical cannabis.” Pharmacotherapy 33 (2): 195–209.
44 Id.
45 57 A.L.R.6th 285, (2010).
46 Id.
47 Brief of the American Pain Foundation, et.al., as Amici Curiae Supporting Petitioners, at 20-24, Ross v. RangingWire Telecomms., Inc., 174 P.3d 200 (Cal. 2008), No. C043392 (Aug. 7, 2006). 
48 See, e.g., Cal. Health & Safety Code § 11362.785(a); Or. Rev. Stat. § 475B.413 (West 2003); See more at 26 Hofstra Lab. & Emp. L.J. 619 (2009). 
49 StoptheDrugWar.org, Medical Marijuana and the Right to Work: Under Attack in California and Oregon, At Risk In Most Other States As Well, Drug War Chronicle, Feb. 1, 2008, available at http://stopthedrugwar.org/chronicle/521/marijuana_medical_employee_patient_rights.
50 The term derives from early anti-drug policies which were developed under the presidential administration of
Ronald Reagan in the so-called “war on drugs.” The State of Criminal Justice 2011, Chpt. 7, John D. “Jay” Elliot.
51 41 U.S.C.A. § 8103  (2011). 
52 Id.
53 Id.
54 Parker v. Atlanta Gas Light Co., S.D.Ga.1993, 818 F.Supp. 345 (1993).
55 Roe v. TeleTech Customer Care Mgmt. LLC., 171 Wn.2d 736, 756, 257 P.3d 586 (2011).
56 Roe, 171 Wn.2d at 755.
57 Roe, 171 Wn.2d at 747-48.
58 Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 248 Or. 159, 230 P.3d 518 (2010).
59 Id. at 524.
60 Id. at 529.
61 Id. at  520-521.
62 Id. at  526-529.
63 Casias v. Wal-Mart Stores, Inc., 764 F.Supp.2d 914 (W.D. Mich. 2011).
64 Id. at 915.
65 Id. at 918.
66 Id. at 919.
67 Id. at 926.
68 Id. at 922.
69 Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir.2012).
70 Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920, 174 P.3d 200 (Cal. 2008).
71 Id. at 203.
72 Id. at 204.
73 Id. at 208.
74 Johnson v. Columbia Falls Aluminum Co., 350 Mont. 562 (2009).
75 Id.
76 Coats v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (Colo. 2015), available at https://www.courts.state.co.us/userfiles/file/court_probation/supreme_court/opinions/2013/13sc394.pdf.
77 Id. at 850.
78 Retrieved from http://www.huffingtonpost.com/2014/03/24/brandon-coats-dish-network_n_4762502.html.
79 350 P.3d at 850.
80 Id. 
81 Id. at 853.
82 See more at http://www.gordonrees.com/publications/2014/employees-can-inhale-but-what-should-employers-do.
83 Id. 
84 See e.g., http://www.safeaccessnow.org/ca_employment
85 Id.
86 See e.g., http://www.maine.gov/bhr/rules_policies/policy_manual/15_2.htm
87 Id.; and https://www.transportation.gov/sites/dot.gov/files/docs/199111028_Omnibus_Act.pdf.
88 See U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Reasonable Accommodation & Undue Hardship Under the Americans With Disabilities Act, EEOC Bull. No. 915.002 (2002), at p. 39, available at https://www.eeoc.gov/policy/docs/accommodation/html. The EEOC Guidelines state that medications along with their side effects should be considered part of the disability, and accommodated for as well. Id.  
89 26 Hofstra Lab. & Emp. L.J. 619 (2009).
90 42 U.S.C. § 12102.
91 Id. 
92 Supra note 88.
93 Id.; see more at https://www.eeoc.gov/policy/docs/accommodation.html.
94 Compare Washburn, 104 P.3d at 612-16 (holding that the provision stating that an employer need not accommodate the use medical use of marijuana at the workplace only including the possession, administration or distribution of the drug at the workplace, and did not include using the drug at home during off-duty hours and having trace elements of the drug in the employee’s urine at work. The Court left open for the trial court what a “reasonable accommodation” would be under Oregon Law.) with Ross, 174 P.3d at 206-08 (holding that the provision stating that nothing in the California Compassionate Use Act required the accommodation of marijuana in the workplace was not an exception to the general rule of accommodation in the FEHA).  
95 Enforcement Guidance: Reasonable Accommodation & Undue Hardship under the Americans with Disabilities Act, EEOC Compl. Man. (BNA), p. 24 (2002).
96 Supra note 61.
97 See, e.g., Cal. Health & Safety Code § 11362.785(a); Or. Rev. Stat. § 475B.413 (West 2003).
98 http://www.ebglaw.com/news/new-york-states-medical-marijuana-law-gives-workplace-anti-discrimination-protection/
99 http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx
100 http://apps.americanbar.org/litigation/committees/employment/articles/summer2014-0814-impact-medical-marijuana-workplace.html
101 Id. 
102 See Peter B. Bensinger, Drug Testing in the Workplace, 498 Annals Am. Acad. Pol. & Soc. Sci. 43, 44 (1988).
103 Id. at 45.
104 42 U.S.C. § 12114(c) (2000).
105 Dale H. Gieringer, Urinalysis or Uromancy: The Untold Costs of Drug Testing Abuse, available at http://norml.org/marijuana/drug-testing/item/urinalysis-or-uromancy.
106 Id. 
107 Id. 
108 Id.
109 Id.
110 The Nat’l Org. for the Reform of Marijuana Laws, NORML’s Model Workplace Policy for Cannabis http://norml.org/aboutmarijuana/item/norml-s-model-workplace-policy-for-cannabis.
111 Id.
112 Id. Urinalysis, the standard form of drug testing in the workplace is not suitable for detecting cannabis impairment or recent cannabis use. The procedure can only detect the presence of metabolites, not the psychoactive parent compound THC. Id. The metabolites can be detected several days to several weeks after the use of marijuana, and cannot test whether the employee is currently impaired or affected by the drug on the job. Id. 

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