Puff, Puff, Don't Pass

By Dillon Fulcher, Cotney Construction Law.

So, your employee has tested positive for marijuana, what do you do next?

You could fire them, or, perhaps, you could give them one last chance. But, how do you formalize that last chance while also protecting yourself? You can enter into what is called a Last Chance (or Second Chance) Agreement with the employee. These agreements set out the terms of ongoing employment, require compliance with the Company’s policies and practice from now on, and state that further violations will result in additional disciplinary action.

In a drug free workplace an employer should have policies and procedures set in place which govern the occurrence of drug tests, which drugs they test for, and the procedure, and consequences, if a test is failed. Typically, a failed drug test could be contested by an employee, but once verified the employee will be sanctioned or terminated. However, some employers are moving towards offering the employee the chance to enter into a treatment program to retain their jobs. These treatment programs can be combined with oversight by the employer to ensure that the employee is on a path to drug free success. This world of Last Chance Agreements has recently been popularized specifically as to marijuana as that drug has seen a noticeable increase in use with the current legal trend.

As you have no doubt seen, marijuana appears to be on a path of legalization whether in the recreational, or much more common medical, realm. Nine states, and the District of Columbia, currently allow legal recreational marijuana use, and they are: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington. While recreational use is starting to grow, medical use has already expanded beyond a majority of U.S. states, thirty-one in all, and the District of Columbia.

It is this medical use that may give some employers pause as they implement drug free workplaces that prohibit the use of marijuana. If an employee is using marijuana for a medical condition, is that a protected use, and could there be liability for terminating that employee for such use? The answer, unfortunately, is it depends.

Federally, based on the current line of cases, Courts have continued to hold that marijuana use is not protected by the Americans with Disabilities Act (“ADA”). In the seminal case of James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012) the Court of Appeals for the Ninth Circuit held that marijuana use permitted by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA, even if it was doctor recommended. It is this “illegal use of drugs” that is critical because the ADA actually allows use of Controlled Substances if taken under supervision by a licensed health care professional, and thus their use is not considered “illegal use of drugs.” Yet, because of marijuana’s status under the Controlled Substance Act as a Schedule 1 substance, it has no currently accepted medical use in treatment in the United States. For that reason, despite the “medical” marijuana term, for purposes of the ADA, marijuana is not protected even if supervised by a licensed health care professional. Other drugs, or alcohol, could be protected by the ADA; as such, this article only addresses marijuana.

While potentially settled under federal law, there is still much confusion at the state level. In New York, for example, no business may take disciplinary action against a certified patient solely for the certified medical use of marijuana. See New York Health Law, Title V-A, § 3369 (1).  Being a certified patient shall be deemed to having a “disability” under the New York Human Rights and Civil Rights Laws.  Employers must reasonably accommodate the disability and related marijuana use.  It is important to note that this law does “not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance.”  See New York Health Law, Title V-A, § 3369 (2).

Other states have similar laws on the books concerning the protected status of medical marijuana users, but they usually also contain exclusions for intoxication while on the job. Or, as in Arizona, the statute may provide “safety sensitive” positions where a business could refuse to hire medical marijuana users if the employer has a good faith belief that the safety of others could be affected.  This concern with workplace safety brings up the issue of intoxication while actually at work.  The difficulty with determining impairment at work is that, currently, testing for marijuana cannot detect current intoxication, as the drug remains in the system for long periods of time.

Beyond present laws, it is important to be aware of the changing legal landscape for these marijuana employment protections. In Colorado there is a proposed Marijuana Consumer Employment Discrimination Protection Bill which would prohibit firing an employee for a positive drug test for traces of marijuana unless the person “used, possessed, or was impaired by marijuana during the hours of employment.”

As you can see, the employment landscape with regards to marijuana is fraught with obstacles. That is why it is so important to have comprehensive policies and procedures implemented concerning drug use and testing. One way to protect yourself is to provide the employee with one last chance in the form of a Last Chance Agreement. The way that the Last Chance Agreement works is that Company policy requires drug testing for marijuana. The employee fails the test. If the employee contests the failed test then the results would be verified. Once verified, the employer may offer a contract that describes the violation, outlines that the employee is receiving a written disciplinary notice, lays out the Company’s expectations, confirms that the employee understands this is the last chance, and also (if applicable) states that the employee understands that his or her employment is still at-will. Other specific terms should be provided by your attorney.

The point of the Last Chance Agreement is to provide notice that failure to abide by a specified set of employment conditions will result in disciplinary action, likely termination. These agreements should include provisions suspending the employee for some period of time, requiring the employee to enter a rehabilitation program, allowing the employer to monitor progress in the program, and requiring the employee to submit to additional drug tests.

Last Chance Agreements can be a great way to retain employees that need additional help but are willing to work on their compliance with Company policies. However, a decision to implement a Last Chance Agreement should be evaluated in light of federal laws, state laws, workplace safety, and contract law. Due to these complications, and technicalities, you should engage an attorney who can help you navigate the landscape of marijuana related employment issues.

Learn more about Cotney Construction Law.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Source: Western Roofing