At the 2018 CLM/Business Insurance Retail, Restaurant and Hospitality conference a panel discussed the workplace challenges associated with marijuana. The panel included:
- Kerry Keeney Curtin – Senior Claims Analyst; Allied World Insurance Company
- Tony Lutfi – CEO; Maritime Management Company
- Barry Moscowitz – Attorney; Thompson, Coe, Cousins & Irons LLP
- Shane Singh – Attorney; Lewis, Brisbois, Bisgaard and Smith LLP
As everyone knows, one of the big challenges around marijuana is the lack of consistency between federal and state laws in these areas. It is still considered illegal on the federal level but it is allowed in over 30 states for either medical or recreational use.
Under the Obama administration, federal officials by policy deferred to states on marijuana issues. They were not enforcing federal laws in states where marijuana was approved. The Trump administration recently rescinded that policy memo and it remains to be seen if federal government officials will actually step up enforcement efforts in states where marijuana is legal.
There are some states where they have passed legislation prohibiting employers from firing employees for using medical marijuana. However, absent such legislation the courts have fairly consistently upheld terminations for testing positive for marijuana in violation of the employer’s drug free workplace rules. A big factor in these decisions was the fact that marijuana is illegal under the federal law. One exception is a case last year in Massachusetts where the courts allowed an employee to pursue a wrongful termination claim when they were terminated for testing positive for marijuana which they were using medically. It remains to be seen how courts will approach this issue in the future.
Editor’s note: Here is an excellent summary of the Massachusetts case.
From an employment standpoint, there are significant concerns about how employers can ensure their workers are not impaired on the job because of marijuana. Testing now is focused on the presence of marijuana in the system vs someone being impaired and there currently is no marijuana “breathalyzer” for impairment.