Medical or recreational consumption of marijuana still lacks a green light even in states that allow such use, because federal law allows employers to make adverse employment decisions based on employees’ drug use.
Although some states had laws that allow the medical use of marijuana as early as 1996, the last three years have induced media madness over the legislative reversal of the treatment of marijuana. Twenty-one states and the District of Columbia (together home to approximately one-third of Americans) have passed legislation allowing some use of marijuana, most often for medicinal purposes. Colorado and Washington state each now allow the recreational use of marijuana for people age 21 or older. According to the National Organization for the Reform of Marijuana Laws (NORML), marijuana is the third most popular recreational drug in the United States, after alcohol and tobacco.1 Although Wisconsin is not one of the 21 states that permit the use of marijuana in some form, it is a safe bet that a significant portion of the American (and by extension, the Wisconsin) workforce is smoking.
Wisconsin employers are subject to the Wisconsin Fair Employment Act (WFEA), Wis. Stat. section 111.321, which states, in relevant part, that “no employer … may engage in any act of employment discrimination … against any individual on the basis of … use or nonuse of lawful products off the employer’s premises during nonworking hours….” Most employers know that the WFEA prohibits discrimination against an employee for activity that happened off duty, and by extension for the use or nonuse of lawful products.
The statute provides an exception if the use of the lawful product conflicts with a bona fide occupation qualification related to the job or creates a conflict of interest with respect to the employee’s job duties. However, for purposes of this article, it is assumed that the exceptions do not apply. Because marijuana is legal in other states (in varying degrees and circumstances), the question is, if a Wisconsin employee is legally lighting up in another state, can an employer fire that employee?
Can Mary Jane Get You Fired?
Wisconsin doesn’t permit the use of marijuana in any circumstance, but many other states do. That’s why every employee handbook will need to address the question — will Mary Jane get you fired?
Gain some clarity by watching the State Bar of Wisconsin PINNACLE® On Demand, “Can Mary Jane Get You Fired?,” with speaker Francine Bailey.
Categories of Legalization
State marijuana laws are not identical. The majority of laws that allow for the use of marijuana do so only in limited circumstances, typically related to medical conditions. As for neighboring states in the upper Midwest region, neither Iowa nor Minnesota has a law allowing the use of marijuana for some purpose.
Michigan allows the use of medical marijuana only. Initially passed in 2008, and modified in 2012, Michigan’s laws permit individuals with certain diseases to use marijuana to relieve symptoms, if the patients have a doctor’s recommendation. Patients who qualify and designated caregivers receive protection to possess, grow, and transport small amounts of marijuana.2 Illinois passed laws in 2013 allowing for the medical use of marijuana. The Illinois laws, touted as the “toughest” medical marijuana statutes in the country, permit use only by a restricted category of patients.3
At the other end of the spectrum, and perhaps the most well-known state laws, are those recently passed in Colorado and Washington. Both Colorado and Washington permit the use of marijuana for any adult age 21 or older. In Washington, an individual 21 or older may possess up to one ounce of marijuana.4 Similarly, in Colorado, an individual 21 or older may possess up to one ounce of marijuana, and additionally, may grow up to six plants. Both states also allow for the regulated sales of marijuana to adults age 21 or older.5
Being based in Wisconsin will not necessarily insulate a Wisconsin employer from dealing with an employee who can legally use medical marijuana.
Despite a majority of Americans agreeing that marijuana should be made legal (according to a Pew Research Center survey, 54 percent of Americans believe marijuana should be made legal6), possession of marijuana remains illegal under federal law. For purposes of the federal Controlled Substances Act (CSA), marijuana is a Schedule I drug.7 Schedule I drugs are defined as drugs that have “no currently accepted medical use and a high potential for abuse.” According to the U.S. Drug Enforcement Administration, Schedule I drugs are considered to be the “most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”8 With conflicting laws, the legal issues of smoking marijuana remain hazy even in states where use is permitted.
In August 2013, Deputy Attorney General James Cole released a memorandum for all U.S. Attorneys (that is, federal prosecutors) providing guidance on marijuana enforcement.9 Although federal prosecutors will continue to enforce the CSA, the memorandum speaks to the recent legalizations and decriminalization of marijuana in various states. Noting that the U.S. Justice Department remains committed to enforcing the CSA, Cole went on to state that federal prosecutors should focus efforts on the following:
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
Cole further noted that the federal government will leave localized activity in the hands of state and local authorities when the activity does not threaten or cause one of the harms identified above.
Cole’s memo acknowledged that states may be in a better position to address the above-mentioned priorities. In fact, in the memo, Cole recognized that states have implemented “strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana…and [are] less likely to threaten the federal priorities.” However, Cole then said that “[i]f state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.” Cole encouraged the use of prosecutorial discretion and the review of each case on a case-by-case basis and stopped far short of stating that the federal government will not investigate and enforce the CSA.
Although many questions remain cloudy surrounding the interplay of state law and the CSA, marijuana is still being used throughout the United States. Even though Wisconsin permits the use of marijuana only in extremely limited circumstances, the passage of the recreational use laws in Colorado and Washington might affect Wisconsin employers.
A simple Internet search for marijuana + tourism will lead to a variety of hits on pot tours. Fodor’s has a page dedicated to “Pot Tourism in Colorado,” alerting tourists to the parameters of the law, where to find retailers, rules for purchase, and where to smoke. Similarly, CNN published an article online titled “Seattle’s budding economy: Pot tourism.” With a wink and a nod – and out-and-out advertising – it is a safe bet that Wisconsin residents will be headed to states where they can legally light up. So what does that mean for Wisconsin employers?
If an employee travels to either Colorado or Washington and uses marijuana in a permissible manner, can an employer terminate that employee’s employment without running afoul of the antidiscrimination statute? To date, the issue has not been before a Wisconsin court. However, a case decided in Colorado is instructive. (For purposes of this article, we assume only recreational use in Colorado or Washington, because most (but not all) states that allow use for medicinal purposes also have a residency requirement.)
Brandon Coats was an employee of Dish Network LLC before he was terminated because he tested positive for marijuana in violation of Dish Network’s drug policy.10 Coats was a quadriplegic and licensed by the state of Colorado to use medical marijuana pursuant to then-current Colorado law. Coats said that he never used marijuana while at work or on Dish Network’s premises and was never under the influence at work. Dish Network fired Coats because of the failed drug test. It claimed no other reason for the termination.
The Colorado Civil Rights Act, like the WFEA, prohibits an employer from terminating an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours….”11 Coats claimed that because his marijuana use was legal under Colorado statute, his termination was unlawful discrimination in violation of the Colorado Civil Rights Act.
Initially, the court in that case noted that the use of marijuana was “illegal under federal law, even for medical users” (and it remains so). However, Coats claimed that the use of medical marijuana was still lawful activity for purposes of the Colorado Civil Rights Act because it was lawful pursuant to Colorado law, and “lawful activity” referred only to state law. The court disagreed.
The court found nothing in the statute indicating that the legislature intended to include activities that are lawful pursuant to state statute but illegal under federal law. The Colorado Appeals Court found support for its position in cases from California and Washington, as well as legislative interpretation within other statutes. Therefore, the court found that because Coats’ use of marijuana was illegal pursuant to federal law, it was not a “lawful activity” for purposes of the Colorado Civil Rights Act.12
Wisconsin employers probably can terminate employees for marijuana use, even if the use is legal pursuant to a state law such as Act 267 or another state’s law.
As noted above, most states permit the use of marijuana only for medical purposes. Although most medical marijuana laws require residency, many companies have employees who reside in states other than the state of corporate headquarters. Therefore, being based in Wisconsin will not necessarily insulate a Wisconsin employer from dealing with an employee who can legally use medical marijuana. If an employee who is a medical-marijuana patient tests positive for marijuana as part of a drug test by an employer and the employer terminates the employee, will that employer be in violation of either the Americans with Disability Act (ADA) or the state counterpart? Although courts often sympathize with the patient, the answer still is that an employer may terminate that employee’s employment.
Just as in Coats v. Dish Network LLC, the plaintiff in Curry v. MillerCoors was licensed to use medical marijuana in Colorado.13 MillerCoors terminated Curry after he tested positive for marijuana, in violation of a written drug policy. As one basis of his complaint, Curry alleged that MillerCoors was in violation of the Colorado Civil Rights Act’s prohibition on discrimination on the basis of a disability. Curry said that he never used marijuana while at work and was never under the influence at work and that he used marijuana within the legal limits of the medical-use license to control his symptoms. Therefore, by terminating his employment, Curry claimed, MillerCoors terminated his employment “because of the treatment that [he] was using to manage the symptoms of his disabling medical conditions.” The court was not persuaded by Curry’s argument, and it granted MillerCoors’ motion to dismiss.
The court relied on established precedent that “it is acceptable for an employer to have a written drug policy and to terminate an employee as a result of a drug test showing the presence of marijuana in the employee’s system during working hours.” Additionally, the court cited the EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, which explains that “an employer is not required to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity, even if the misconduct is the result of a disability.”
Lighting Up in the Dairyland
Effective April 18, 2014, 2013 Wisconsin Act 267 created an exemption to criminal penalties for the possession or use of THC for a very limited set of individuals. The relevant provisions are codified in sections 961.14(4t), 961.34(2), and 961.38(1n). The exemption only applies so long as the THC does not include cannabidiol in a form with psychoactive effect. Only individuals who suffer from a seizure disorder are exempted from criminal penalties. To qualify for the exemption, a patient must have a written certification from his or her physician that states the individual uses the cannabidiol to treat a seizure disorder. However, Wisconsin does not allow for the cultivation of marijuana or dispensing of marijuana. For most people, marijuana use remains illegal in Wisconsin.
Wisconsin employers probably can terminate employees for marijuana use, even if the use is legal pursuant to a state law such as Act 267 or another state’s law. Although Wisconsin courts have not tested the issue, California, Colorado, Michigan, Montana, Oregon, and Washington have all faced suits by employees who were terminated for legal use of marijuana. The courts in each of those states found in favor of the employer. Similarly, the Ninth Circuit has also found that an employer did not violate antidiscrimination laws by terminating an employee based on legal marijuana use. The determining factor is typically the blanket prohibition of marijuana under current federal law. Although these cases are not precedential for Wisconsin state law, they are a reasonable indication of how a Wisconsin court would treat legal marijuana use in a different state as the basis of a Wisconsin employer’s termination of an employee.
There is no question that the court of public opinion has given a tentative blessing to the use of marijuana in limited circumstances. However, as with all changes in the law, practical application will take time to develop – dragging statutory and case law with it. Until then, employees of Wisconsin companies would be well-advised to proceed with caution when lighting up.