[S]upreme courts in California, Oregon, Washington and Montana have all upheld employer decisions to discharge employees that were medical marijuana patients. The plaintiffs in these lawsuits have argued that medical marijuana users are protected under such statutes because the law itself creates the sought-after employment protections, that the employer’s decision to discharge the user violates the public policy of the state, and/or that the employer discriminated against them on the basis of a disability when it failed to accommodate their medical marijuana use. The courts, in response, have held that the medical marijuana statutes in their state only protect patients from criminal sanctions and do not create any civil remedies or protections. As such, the courts have held that these statutes do not create a clear public policy that might otherwise support a wrongful termination claim or establish that medical marijuana users belong to a protected class.
At least currently, employers do not need to accommodate medical marijuana and may ban its use by employees. For businesses that do drug testing, positive results for marijuana can be acted on, even if the employee is using the marijuana legally.
The simplest way to address marijuana use is by including it in a substance abuse policy that addresses all drugs that impair performance, including prescription drugs.
Substance Abuse Sample Policy
Company takes seriously the use of drugs, abuse of controlled substances, and alcohol abuse that may affect an employee’s ability to perform his or her work, and strives to provide a substance-free work place. This policy applies to all employees of Company, without exception, including part-time and temporary employees.
Company will not tolerate any employee who reports to work while under the influence of drugs or alcohol. Company employees are not allowed to use, possess, transfer, or sell any drugs (unless prescribed for that employee) during working hours or while representing Company. Employees who are taking prescription or other legal drugs that may impair their ability to perform their job are under a duty to immediately report this information to their supervisor.
Employees are expected to behave in a responsible manner at any business-related function at which alcohol is served, and to refrain from driving to or from a business function while impaired.
Employees should report any drug or alcohol abuse immediately.
Employees who violate this policy are subject to disciplinary action.
Note that the laws are subject to change and interpretation. Talk to a knowledgeable employment attorney before acting on the information in this post.