Articles

Recent Developments in Medical Marijuana Use in the Workplace – Part I

By David F.E. Banks

This article is the first of a three-part series in which we review recent legal developments in Hawai`i and across the country regarding the use of medical marijuana and its impact on the workplace. This segment looks at the history of medical marijuana in Hawai`i and the application of federal and state disability discrimination laws to employees who are medical marijuana patients. Later articles will consider the implications of medical marijuana laws on drug testing in the workplace, survey the use of medical marijuana in the workers’ compensation arena, and offer employers practical guidance on this rapidly changing issue.

Background on legalization

Modern research suggests that cannabis is a valuable aid in the treatment of a wide range of physical symptoms and illnesses, including pain, nausea, spasticity, glaucoma, and movement disorders. Marijuana is also a powerful appetite stimulant. Moreover, emerging research suggests that marijuana’s medicinal properties may protect the body against some types of malignant tumors.

The use, possession, or sale of marijuana remains a crime under federal law. However, the federal government has no legal authority to prevent state governments from changing their laws to remove state-level penalties for medical marijuana use.

In the United States, recreational marijuana is now legally available in Alaska, Colorado, Oregon, and Washington. Medicinal marijuana is currently legal in 24 states, including Hawai`i. In 2014, the medical marijuana industry was valued at an estimated $2.6 billion. It has been predicted that 14 more states will legalize marijuana for medical or recreational use by adults in the next three to five years, creating a potential $10 billion cannabis market by 2018.

History of medical marijuana in Hawai`i

On June 14, 2000, the Hawai`i Legislature enacted Act 28, Session Laws of Hawai`i 2000, to provide medical relief for seriously ill individuals in the state. The Act was codified as Chapter 329, Hawai`i Revised Statutes (HRS). Although the law recognized the beneficial use of marijuana in treating or alleviating pain or other symptoms associated with certain debilitating illnesses, it was silent on how patients can obtain medical marijuana if they or their caregivers are unable to grow their own supply.

Many of the state’s nearly 13,000 qualifying patients lack the ability to grow their own supply of medical marijuana for a number of reasons, including disability and limited space to grow the plants. As a result, a regulated statewide dispensary system for medical marijuana is urgently needed by qualifying patients in the state.

On May 7, 2015, the legislature passed Act 241, Session Laws of Hawai`i 2015, to provide for the establishment of medical marijuana dispensaries to ensure that qualified patients can legally and safely access medical marijuana in Hawai`i. Governor David Ige signed the bill into law on July 14. In his accompanying press release, the governor stated, “I support the establishment of dispensaries to ensure that qualified patients can legally and safely access medical marijuana.”

Although the Hawai`i Department of Health is still in the process of drafting regulations, the timeline established in the medical marijuana dispensary law calls for the issuance of eight licenses across the state by April 16, 2016 (including three in the city and county of Honolulu), and for the commercial production and sale of medical marijuana beginning July 1, 2016.

Federal, state protections for disabled employees

Both the federal Americans with Disabilities Act (ADA) and HRS, Chapter 378, Part I, prohibit employment discrimination based on someone’s disability. Under state and federal law, an employer must provide reasonable accommodations for the known physical or mental limitations of an employee with a disability unless it can show that the accommodation would impose an undue hardship on its business.

A reasonable accommodation is any modification or adjustment that makes it possible for a person with a disability to enjoy equal employment opportunity. Reasonable accommodations might include making existing facilities accessible; restructuring a job; allowing a part-time or modified work schedule; acquiring or modifying workplace equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; or reassigning the employee to a vacant position.

Under both federal and state law, a person with a “disability” has a physical or mental impairment that substantially limits one or more major life activities. Major life activities include basic activities that most people in the general population can perform with little or no difficulty, including caring for yourself, performing manual tasks, walking, seeing, and hearing. Major life activities also include the operation of major bodily functions, including functions of the immune, neurological, circulatory, cardiovascular, lymphatic, musculoskeletal, and reproductive systems.

In a 2012 decision, James v. Costa Mesa, the U.S. 9th Circuit Court of Appeals (whose rulings apply to all Hawai`i employers) held that the ADA does not protect individuals who use marijuana for medical reasons or require employers to accommodate the medical use of marijuana. The ADA expressly excludes current users of illegal drugs from its definition of “qualified individuals with a disability,” and marijuana remains an illegal drug under federal law, even when its use is legal under state law.

In addition, federal drug-free workplace laws apply to federal contractors, and in the transportation industry, U.S. Department of Transportation (DOT) regulations state that employees in safety-sensitive positions (e.g., truck drivers) who test positive for drugs must be removed from the job until they meet certain return-to-duty requirements. Noncompliance with DOT regulations can result in fines and loss of federal funding. Some state medical marijuana statutes expressly permit an employer to discipline a qualifying medical marijuana user for violating a workplace drug policy or failing a drug test if it would cause the employer to be in violation of federal law or lose a federal contract or funding. Hawai`i’s medical marijuana law doesn’t address this issue; it merely prohibits the use of medical marijuana in any moving vehicle.

While there’s an apparent conflict between federal and state laws, it’s worth noting that no court has ruled that federal law preempts Hawai`i’s medical marijuana law. Moreover, our state laws provide broader and stronger protections than federal law. That raises an interesting issue: Under Hawai`i disability law, must an employer consider and provide a reasonable accommodation for an employee with a disability who is a medical marijuana user by making an exception to a policy that imposes discipline for a positive marijuana drug test?

Under current law, the answer is likely no. No jurisdiction in the United States has a medical marijuana law that requires employers to reasonably accommodate the use of medical marijuana by employees with disabilities unless employment-related protections are expressly included in the medical marijuana statute. Of the 24 states that have medical marijuana laws, it appears that six states’ statutes include protections for employees: Arizona, Delaware, Maine, Minnesota, Nevada, and Rhode Island.

The Arizona, Delaware, and Minnesota statutes expressly protect employees who are registered medical marijuana users from discriminatory action in hiring, termination, terms and conditions of employment, or other penalties based on a positive drug test (unless failing to penalize them would violate federal law or regulations or cause the company to lose a monetary or licensing-related benefit under federal law or regulations). Nevada requires employers to make reasonable accommodations for an employee who is a registered medical marijuana user.

Hawai`i almost followed suit with Act 242, passed during the last legislative session. An early draft of Act 242 (Senate Bill 1291) would have (1) protected employees who are registered medical marijuana users from discriminatory action and (2) required employers to consider and provide reasonable accommodations for employees with disabilities who test positive for marijuana if they are registered qualifying medical marijuana patients. In the end, Act 242 was modified to prohibit discrimination against medical marijuana patients and their caregivers by schools, landlords, and courts with regard to medical care or parental rights (employers were excluded from the Act’s coverage).

It’s also important to note that the definition of “debilitating medical condition” in HRS § 329-121 (the medical marijuana law) is not identical to the definition of “disability” in HRS § 378-1 and Hawai`i Administrative Rules (HAR) § 12-46-182 (the disability discrimination law and regulations), so not every qualifying medical marijuana patient will necessarily be a person with a disability entitled to a reasonable accommodation.

By David F.E. Banks

This article is the first of a three-part series in which we review recent legal developments in Hawai`i and across the country regarding the use of medical marijuana and its impact on the workplace. This segment looks at the history of medical marijuana in Hawai`i and the application of federal and state disability discrimination laws to employees who are medical marijuana patients. Later articles will consider the implications of medical marijuana laws on drug testing in the workplace, survey the use of medical marijuana in the workers’ compensation arena, and offer employers practical guidance on this rapidly changing issue.

Background on legalization

Modern research suggests that cannabis is a valuable aid in the treatment of a wide range of physical symptoms and illnesses, including pain, nausea, spasticity, glaucoma, and movement disorders. Marijuana is also a powerful appetite stimulant. Moreover, emerging research suggests that marijuana’s medicinal properties may protect the body against some types of malignant tumors.

The use, possession, or sale of marijuana remains a crime under federal law. However, the federal government has no legal authority to prevent state governments from changing their laws to remove state-level penalties for medical marijuana use.

In the United States, recreational marijuana is now legally available in Alaska, Colorado, Oregon, and Washington. Medicinal marijuana is currently legal in 24 states, including Hawai`i. In 2014, the medical marijuana industry was valued at an estimated $2.6 billion. It has been predicted that 14 more states will legalize marijuana for medical or recreational use by adults in the next three to five years, creating a potential $10 billion cannabis market by 2018.

History of medical marijuana in Hawai`i

On June 14, 2000, the Hawai`i Legislature enacted Act 28, Session Laws of Hawai`i 2000, to provide medical relief for seriously ill individuals in the state. The Act was codified as Chapter 329, Hawai`i Revised Statutes (HRS). Although the law recognized the beneficial use of marijuana in treating or alleviating pain or other symptoms associated with certain debilitating illnesses, it was silent on how patients can obtain medical marijuana if they or their caregivers are unable to grow their own supply.

Many of the state’s nearly 13,000 qualifying patients lack the ability to grow their own supply of medical marijuana for a number of reasons, including disability and limited space to grow the plants. As a result, a regulated statewide dispensary system for medical marijuana is urgently needed by qualifying patients in the state.

On May 7, 2015, the legislature passed Act 241, Session Laws of Hawai`i 2015, to provide for the establishment of medical marijuana dispensaries to ensure that qualified patients can legally and safely access medical marijuana in Hawai`i. Governor David Ige signed the bill into law on July 14. In his accompanying press release, the governor stated, “I support the establishment of dispensaries to ensure that qualified patients can legally and safely access medical marijuana.”

Although the Hawai`i Department of Health is still in the process of drafting regulations, the timeline established in the medical marijuana dispensary law calls for the issuance of eight licenses across the state by April 16, 2016 (including three in the city and county of Honolulu), and for the commercial production and sale of medical marijuana beginning July 1, 2016.

Federal, state protections for disabled employees

Both the federal Americans with Disabilities Act (ADA) and HRS, Chapter 378, Part I, prohibit employment discrimination based on someone’s disability. Under state and federal law, an employer must provide reasonable accommodations for the known physical or mental limitations of an employee with a disability unless it can show that the accommodation would impose an undue hardship on its business.

A reasonable accommodation is any modification or adjustment that makes it possible for a person with a disability to enjoy equal employment opportunity. Reasonable accommodations might include making existing facilities accessible; restructuring a job; allowing a part-time or modified work schedule; acquiring or modifying workplace equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; or reassigning the employee to a vacant position.

Under both federal and state law, a person with a “disability” has a physical or mental impairment that substantially limits one or more major life activities. Major life activities include basic activities that most people in the general population can perform with little or no difficulty, including caring for yourself, performing manual tasks, walking, seeing, and hearing. Major life activities also include the operation of major bodily functions, including functions of the immune, neurological, circulatory, cardiovascular, lymphatic, musculoskeletal, and reproductive systems.

In a 2012 decision, James v. Costa Mesa, the U.S. 9th Circuit Court of Appeals (whose rulings apply to all Hawai`i employers) held that the ADA does not protect individuals who use marijuana for medical reasons or require employers to accommodate the medical use of marijuana. The ADA expressly excludes current users of illegal drugs from its definition of “qualified individuals with a disability,” and marijuana remains an illegal drug under federal law, even when its use is legal under state law.

In addition, federal drug-free workplace laws apply to federal contractors, and in the transportation industry, U.S. Department of Transportation (DOT) regulations state that employees in safety-sensitive positions (e.g., truck drivers) who test positive for drugs must be removed from the job until they meet certain return-to-duty requirements. Noncompliance with DOT regulations can result in fines and loss of federal funding. Some state medical marijuana statutes expressly permit an employer to discipline a qualifying medical marijuana user for violating a workplace drug policy or failing a drug test if it would cause the employer to be in violation of federal law or lose a federal contract or funding. Hawai`i’s medical marijuana law doesn’t address this issue; it merely prohibits the use of medical marijuana in any moving vehicle.

While there’s an apparent conflict between federal and state laws, it’s worth noting that no court has ruled that federal law preempts Hawai`i’s medical marijuana law. Moreover, our state laws provide broader and stronger protections than federal law. That raises an interesting issue: Under Hawai`i disability law, must an employer consider and provide a reasonable accommodation for an employee with a disability who is a medical marijuana user by making an exception to a policy that imposes discipline for a positive marijuana drug test?

Under current law, the answer is likely no. No jurisdiction in the United States has a medical marijuana law that requires employers to reasonably accommodate the use of medical marijuana by employees with disabilities unless employment-related protections are expressly included in the medical marijuana statute. Of the 24 states that have medical marijuana laws, it appears that six states’ statutes include protections for employees: Arizona, Delaware, Maine, Minnesota, Nevada, and Rhode Island.

The Arizona, Delaware, and Minnesota statutes expressly protect employees who are registered medical marijuana users from discriminatory action in hiring, termination, terms and conditions of employment, or other penalties based on a positive drug test (unless failing to penalize them would violate federal law or regulations or cause the company to lose a monetary or licensing-related benefit under federal law or regulations). Nevada requires employers to make reasonable accommodations for an employee who is a registered medical marijuana user.

Hawai`i almost followed suit with Act 242, passed during the last legislative session. An early draft of Act 242 (Senate Bill 1291) would have (1) protected employees who are registered medical marijuana users from discriminatory action and (2) required employers to consider and provide reasonable accommodations for employees with disabilities who test positive for marijuana if they are registered qualifying medical marijuana patients. In the end, Act 242 was modified to prohibit discrimination against medical marijuana patients and their caregivers by schools, landlords, and courts with regard to medical care or parental rights (employers were excluded from the Act’s coverage).

It’s also important to note that the definition of “debilitating medical condition” in HRS § 329-121 (the medical marijuana law) is not identical to the definition of “disability” in HRS § 378-1 and Hawai`i Administrative Rules (HAR) § 12-46-182 (the disability discrimination law and regulations), so not every qualifying medical marijuana patient will necessarily be a person with a disability entitled to a reasonable accommodation.

Bottom line

The need to use medical marijuana is not itself a qualifying disability under the ADA or Hawai`i disability discrimination law. However, using positive drug tests as a method designed to screen out disabled job applicants would violate the law. In addition, merely relying on the illegality of the drug will not be useful in Hawai`i because the drug is in fact legal if prescribed, and employers must then consider whether such use can be accommodated. If this situation arises, get help from a skilled employment lawyer in order to ensure all state and federal laws are followed.

David F.E. Banks is a partner with Cades Schutte LLP.  He is currently chair of both the Corporate Department and the Employment Law and Labor Relations Group.  His employment law practice focuses on preventative counseling, strategic planning, legal compliance, labor and employment issues in M&A transactions, reductions in force, and assisting clients with drafting employment-related agreements, manuals, policies and procedures.