On May 29, 2020, the Rhode Island Supreme Court affirmed dismissal of an employee’s lawsuit against his former employer after it terminated him for refusing to submit to a reasonable suspicion drug test, even though his “bizarre” behavior could have been attributed to other causes. As employers are becoming increasingly concerned about marijuana use in

On January 17, 2020, Hawaii Senators Rosalyn Baker (D) and Brian Taniguchi (D) introduced Senate Bill 2543, which proposes to provide employment protections to job applicants and employees who use medical cannabis. If enacted, Hawaii would join the growing number of states to pass similar laws.

Specifically, the most recent version of the bill

Marijuana (cannabis) remains a Schedule I drug under the federal Controlled Substances Act. And, more than a decade ago, the California Supreme Court held in Ross v. RagingWire Telecomm., Inc., that employers have the right to reject an applicant who tests positive for medical cannabis. Since that time, California employers have enjoyed

In a recent decision, Palmiter v. Commonwealth Health Systems, the Pennsylvania Court of Common Pleas held that: (a) the Pennsylvania Medical Marijuana Act (“MMA”) creates a private right of action for wrongful termination; and, alternatively, (b) an employee who claims to have been terminated for medical marijuana use authorized under the MMA can bring a claim of wrongful termination in violation of public policy.  This Pennsylvania court now joins courts in several other states, including Arizona, Connecticut, Delaware, Massachusetts, New Jersey, and Rhode Island, which have allowed adverse action claims against employers by employees or applicants who used medical marijuana under state law.
Continue Reading Pennsylvania Court Allows Medical Pot User To Proceed With Wrongful Termination Suit

On January 10, 2020, Colorado Representative Jovan Melton (D) introduced House Bill 20-1089, which proposes to clarify that the existing prohibition on an employer terminating an employee for the employee’s lawful off-duty activities, like off-duty consumption of alcohol, extends to activities that are lawful under state law even if they are illegal under federal

In 2016, Pennsylvania enacted its “Medical Marijuana Act” (MMA), which permits individuals suffering from certain conditions to use marijuana for medicinal use. Several provisions in the MMA impact employers. For instance, the MMA makes it unlawful for an employer to “discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” In other words, taking adverse action against an employee based solely on the individual’s status as a medical marijuana cardholder would likely be considered discrimination under the MMA.
Continue Reading Pennsylvania’s Medical Marijuana Act at Issue in Recently Filed Complaint

The American Civil Liberties Union (ACLU) filed suit last week in the D.C. Superior Court on behalf of Doretha Barber, a sanitation worker with the D.C. Department of Public Works, who claims that she was denied reasonable accommodation and placed on an indefinite leave of absence after disclosing that she is a medical marijuana card-holder under the District’s medical marijuana program.  Specifically, Ms. Barber alleges that she suffers from degenerative disc disease which causes her debilitating back pain and for which she was recently prescribed medical marijuana for off-duty use only.  When Ms. Barber requested a temporary transfer to a clerical position during the fall leaf raking season as an accommodation of her disability, she was purportedly denied the transfer, and after she disclosed that she possessed a medical marijuana card, she was allegedly placed on an unpaid leave of absence and told that she could not resume her duties as a sanitation worker until she successfully passed a drug test (which she would inevitably fail due to her medical marijuana use) because she was working in a “safety sensitive position.”
Continue Reading D.C. Sees Latest Test Case for Employees Seeking “Reasonable Accommodation” for Off-Duty Medical Marijuana Use

Following closely on the heels of a similar law in New York City, effective January 1, 2020, it will be unlawful for Nevada employers to reject a job applicant who tests positive for cannabis on a pre-employment drug test. While there is debate as to whether some medical and recreational cannabis laws, including in Maine, allow an employer to take action based on off-duty or off-premises cannabis use, when it comes to job applicants, Nevada law could not be more clear.
Continue Reading Nevada Becomes the First State to Restrict Employer Use of Pre-Employment Cannabis Tests

Illinois Governor J.B. Pritzker is expected to sign a comprehensive recreational cannabis bill.  While the “Cannabis Regulation and Tax Act” contains extensive provisions preserving an employer’s right to ban cannabis and otherwise have a “zero tolerance” substance abuse policy, there are potential traps for the unwary and, thus, employers should carefully consider how the new law will impact their existing substance abuse and drug testing policies and procedures. 
Continue Reading Half Baked: Illinois Legislature Includes Some Employer Protections in New Recreational Cannabis Law – But Beware the Traps

The Illinois General Assembly has been working on a marijuana legalization bill this session.  The Senate Bill would protect employer rights to ban marijuana and discipline employees for use.

Across the country, states are moving to legalize medical and recreational marijuana.  In states that legalize recreational marijuana, employers and drug testing services have seen significant increases in positivity rates for marijuana metabolites.  Wider marijuana use will require employers to take action to ensure safe work environments for their employees, especially in safety sensitive settings.  Drug policies must be updated and must address discrimination concerns.  To that end, we are closely monitoring new forms of discrimination claims from medical marijuana users and regarded-as disabled employees.  See our recent blog concerning a related Arizona court decision.
Continue Reading Illinois Marijuana Legislation Update: Senate Bill Would Protect Employers’ Rights