Marijuana, the Workplace and EPLI - Clearing the Haze
December 05, 2017| Von Mindy Pollack
Region: North America
With 2.4 million Americans (and counting) holding medical marijuana cards, employers are bound to encounter workplace problems like this one:
A business extends a job offer to the most promising applicant. She accepts the offer and proactively alerts her future employer about her marijuana use for a medical condition. She ingests marijuana at home but could fail drug tests conducted on the job. The business owner finds a “zero tolerance” drug and alcohol policy in the employee handbook and rescinds the job offer without further discussion.
Then comes the discrimination lawsuit.
Scenarios like this one are emerging in the workplaces of 29 states where marijuana has been legalized for recreational and/or medical use. The claims typically allege discrimination on the basis of a disability (which may be why the employee is using marijuana) or violation of specific marijuana discrimination laws found in a handful of states. Employers argue that marijuana is illegal under federal law, which conflicts with and should preempt state anti-discrimination laws.1
Who has prevailed?
In recent cases reaching the courts, the score is 3-2 in favor of employees. Employers in Colorado and New Mexico cannot not be sued for discrimination because the courts found state and federal laws conflict, and the federal drug law takes precedence. However, employees in Massachusetts, Connecticut and Rhode Island won when courts did not see a conflict, and ruled that state anti-discrimination laws could be applied without running afoul of federal drug laws.
In short, the courts are split on discrimination claims related to marijuana use. That leaves employers with no single answer when the marijuana question comes up. Add to that the variations in state laws and workplace scenarios, and you have even less clarity.
How can a small business owner cut through the haze? One tool is Employment Practices Liability insurance - especially a Legal Hotline available with many EPLI policies. The business owner or manager can call the Hotline to ask for an experienced employment attorney's advice on how to handle a job applicant or current employee presenting the marijuana issue.
This is precisely the type of situation for which the Hotline is ideal and many insured businesses already know this. Roughly 5% of all Hotline calls in our program are about drug and alcohol use; these insureds are often able to prevent claims by getting quick legal advice.
More than two-thirds of Americans live in the 29 states that have reformed marijuana laws. For insurers operating in those states, chances are that some of the 2.4 million (and counting) marijuana patients work for or will seek employment at a business you insure. For insurance agents assisting those businesses, you have the opportunity to recommend EPLI coverage that can deliver meaningful protection and legal help. And who can’t use more help in the workplace?
- For more on the federal vs. state law conflicts, see our blog on Marijuana and the Workplace.
- www.governing.com; Massachusetts and West Virginia were most recent enactments, but they will not take effect until 2018 and 2019, respectively. Maine passed a recreational marijuana law by ballot, but 2017 implementation legislation was vetoed by the governor.