Haze Lifting on Employer's Rights and Medical Marijuana

The fast expansion of the medical marijuana movement has brought with it growing confusion on the line between a workers' rights to take advantage of the rights afforded by these state statutes and an employer's right to enforce its anti-drug policies. Last week, a New Mexico District Court decision added to the recent list of decisions to tackle this issue and, in doing so, came down on the side of the employer.

New Mexico passed a its Compassionate Use Act in 2007. Under this Act, the state's medical marijuana program is authorized and individuals meeting the statutory and regulatory criteria for participation in the program are eligible to receive Patient Identifications Cards, permitting the medical use of medical marijuana when prescribed by a physician.

The plaintiff/applicant had been diagnosed with HIV/AIDS, which is a serious medical condition as defined by the New Mexico Human Rights Act. He  properly obtained a Patient Identification Card and had been prescribed marijuana for treatment of his condition.This individual subsequently applied for a job and, during his interview with the prospective employer, disclosed his medical condition as well as his participation in the medical marijuana program. He was hired and sent for a drug test pursuant to the company's policy (not what you were expecting, right?).

As you might have guessed, the drug test was returned was positive for marijuana. As a result of that positive test, the new employee was terminated, leading to the perfect storm of legal issues between medical marijuana rights, state discrimination statutes and federal law. As the court itself explained, "[t]his case turns on whether New Mexico's Compassionate Use Act combined with the New Mexico Human Rights Act provides a cause of action for Mr. Garcia. Ever present in the background of this case is whether the Controlled Substances Act preempts New Mexico state law."

The employee sued under the state's Human Rights Act asserting disability discrimination for failure to accommodate, specifically, that medical marijuana is an accommodation that must be provided by an employer under New Mexico's Human Rights Act.

Relying on support from recent Colorado decisions addressing similar issues under that state's statute, the employer argued that the state medical marijuana law offers users of medical marijuana limited protection against state criminal prosecution and does not impose any duty on employers to accommodate medical marijuana. The court agreed, noting that the employee was not terminated on the basis of his medical condition, nor was his positive drug test because of his serious medical condition. Perhaps most important, the court agreed with the employer that the state medical marijuana statute could not require employers to accommodate what the Controlled Substance Act specifically prohibits under federal law. The employee was not seeking immunity under state law for his marijuana use, but to affirmatively require an employer to accommodate the use under disability law and, as such, his claim was dismissed.

As with any state decision on this issue, the language of the actual statute in question is important to assessing how far an employee's rights will go when intersecting with an employer's rights and obligations to accommodate disabilities. No affirmative requirements mandating an employer to accommodate medical marijuana cardholders appears in the New Mexico statute (unlike Delaware and Vermont). However, this decision, along with the Colorado decisions and other precedent cited in the opinion will continue to provide employers in states with medical marijuana statutes firmer ground when seeking to enforce their anti-drug policies against applicants and employees.

Questions? Contact Aimee Delaney of Hinshaw's Chicago office or any other Hinshaw employment attorney.

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