State laws legalizing marijuana may monkey-wrench employers’ use of drug tests.
A patchwork of state laws now exist: some merely decriminalizing marijuana with others mandating that marijuana users be free from disadvantage. The impact of federal preemption adds an Escher-esque design to that quilt.
For employers operating in more than a single state, continuing a uniform approach to marijuana testing is fraught with complications.
First Generation State Laws
First generation state laws only decriminalized marijuana, without speaking to the workplace implications of legalization. Case law under those first generation statutes allowed drug testing for marijuana and discipline of employees who tested positive. For example, Ross v. RagingWire Telecomm. Inc., 174 P.3d 200 (Cal. 2008), held that an employer had no obligation under California’s Compassionate Use Act to accommodate an employee’s use of medical marijuana.
Claims under those first generation laws failed because of federal law’s continued criminalization of marijuana. Emerald Steel Fabricators Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010), is illustrative in concluding that the use of medical marijuana, though authorized by state law, was still an “illegal use of drugs” under federal law. Thus, there was no need to accommodate under state law the use of a drug that remained illegal under federal law.
Second Generation State Laws
Second generation state laws do more than decriminalize; these newer statutes affirmatively grant protections to marijuana users related to employment. Nevada and Illinois are the latest states to have such second generation laws. Employment claims under second generation statutes fare far differently.
Applying Connecticut’s second generation statute, the court in Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-cv-1938 (D Conn. Aug. 8, 2017), ruled that a marijuana-using job applicant who failed her pre-employment drug test was improperly denied employment. Unlike cases under first generation statutes, Noffsinger declined to apply preemption, pointing out that federal law “does not make it illegal to employ a marijuana user” and relying on the explicit limitation of preemption in the federal Controlled Substances Act (21 U.S.C. § 903) to instances of “positive conflict.”
Post-Noffsinger, there have been no cases preempting employment-specific provisions of second generation statutes based on the Controlled Substances Act. But, even if that continues to hold true, there is more to be said about preemption due to the fact there are alternate sources of federal preemption.
There is not only the generic mandate based on federal criminalization of marijuana, but also specific mandates that employers create a drug-free workplace or make employment decisions based on drug test results, such as the Omnibus Transportation Employee Testing Act (49 U.S.C. § 5331) which is applicable to truck drivers, bus drivers, airline employees, and railroad employees.
Another specific mandate in the Drug Free Workplace Act requires federal contractors and grantees to provide a drug-free workplace.
Some second generation statutes (e.g., Arizona, Connecticut, Delaware, and Nevada) provide an exception where drug testing is required by those federal laws. Absent such carve outs, however, state statutes conflicting with such specific mandates of federal law (i.e., to hire and retain employees who fail drug testing due to marijuana use) may well be preempted. When faced with those specific mandates, the direct conflict missing in Noffsinger would be fully present.
Legalization of marijuana has undeniably spawned more employment challenges in court. Those cases have also started looking at the technology of marijuana testing.
Some state statutes (e.g., Connecticut, Delaware, Illinois, and Arizona) provide that employers may prohibit the use of marijuana during work hours and discipline an employee for being under the influence of marijuana during work hours.
For example, Arizona’s statutes permit termination if there is evidence that an individual “was impaired [by marijuana] on the premises of the place of employment or during the hours of employment.”
This focus on impairment highlights a technical dilemma. There is an oft-overlooked difference between testing for alcohol and marijuana. For alcohol, there are scientifically-validated tests that can measure impairment.
For marijuana, the typical tests (urine, saliva, or hair) only show a history of use, not actual impairment; blood tests can go further but are seldom utilized in employment contexts. The roadside breathalyzer used by law enforcement to test drunk driving does not yet have a scientifically-accepted equivalent for marijuana.
What Should Employers Do?
Employers with worksites in different states face challenges. Like paid-leave laws or minimum wage laws where there is also variance state by state, employers will need to be geography-specific in drug testing.
Employers will also need to identify not only where, but why there is testing:
- because a job is safety-sensitive;
- because of legal obligations under the Drug Free Workplace Act or Omnibus Transportation Employee Testing Act; or
- because of tradition or other reasons.
Employers might consider whether drug testing for other drugs (but not reading for marijuana) in states that have legalized marijuana (and thus equalized it to alcohol) is an appropriate middle ground.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Alice Kwak is an associate in McDermott Will & Emery’s Employment Practice Group in the Los Angeles office. She focuses her practice on employment and labor litigation, including claims for discrimination, harassment, wrongful discharge, retaliation, as well as class and collective actions.