Marijuana-related employment lawsuits are on the rise as more workers who have been fired or denied a job over their marijuana use are utilizing litigation to challenge the decisions. This, in turn, is forcing employers to formulate new strategies to balance the risk of litigation against the possibility of impaired employees hurting someone on the job, damaging the business, or possibly even worse.
The surge in litigation began in western states like Colorado, Oregon, California, and Washington where marijuana has been legal for several years, but has recently spread east and is unlikely to slow down. The early trend in these cases favored employers. State courts routinely found that the state laws legalizing marijuana (recreational or medical) did not prevent an employer from enforcing its own drug policy. That trend has now started to reverse. Courts have started to side with employees with valid medical marijuana certifications finding that an employer’s decision to fire them over a positive marijuana test can give rise to a discrimination claim. Further, the New York City Council passed a bill in April 2019 that prohibits employers from requiring prospective employees to submit to a test for the presence of marijuana or THC, and Nevada prohibits employers from failing or refusing to hire a prospective employee because of a positive test for marijuana.
It’s not just on the medical side where things are shifting in the employees favor. Illinois’s recently passed recreational marijuana legislation allows employers to enforce their own drug policies, but also creates a host of complicated regulations to protect employees. The most significant regulation prohibits employers from firing employees based solely on a positive drug test; the employer needs evidence of actual workplace impairment as well. Specifically, employers need a “good faith belief that the employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance.” That is significant as it recognizes that recreational marijuana can be consumed legally outside of the workplace (or at least it will be starting January 1, 2020) and that the timing of marijuana consumption is critical in the employment law context.
As marijuana continues to move into the mainstream, we expect to see several states enact laws specifically addressing the employer-employee relationship. Yet until those laws are on the books, the employer-employee landscape will be shaped mainly by the courts through litigation. Companies will need to weigh several factors when establishing drug policies during the upcoming years, and they should seek the assistance of outside counsel when doing so. Taking the time to get it right on the front end could prevent unwanted litigation (and judgments) on the back end.