Hunton Employment & Labor Perspectives

On June 5, 2019, Nevada Governor Steve Sisolak signed into law Assembly Bill No. 132 (“A.B. 132” or the “new law”), which is the first state law to curb pre-employment marijuana drug tests.  The new law has two primary effects: 1) it makes it unlawful for Nevada employers to fail or refuse to hire a prospective employee because the applicant submitted to a screening test and the results of the test indicate the presence of marijuana; and 2) it provides employees who test positive for marijuana with the right to, at their own expense, rebut the original test results by submitting an additional screening test within the first 30 days of employment. 

Voters in Michigan, Utah and Missouri passed marijuana-related ballot measures in the November 2018 elections.  Michigan, which legalized medical marijuana in 2008, became the tenth state to legalize recreational use of marijuana.  Utah voters agreed to institute a formal structured medical marijuana program, greatly expanding the scope of the state’s existing medical marijuana law, and Missouri voters for the first time authorized the state to create a system of licensed marijuana dispensaries for medical purposes. Each of these measures recognizes that marijuana remains a controlled substance, and illegal, under federal law, and that authorized users, growers, physicians, and any others who properly support or participate in these programs will be shielded from liability only under state law.

Massachusetts’ highest court last month became the first nationally to rule that many job applicants and employees who are medically certified to use marijuana cannot be automatically denied employment if they test positive for the drug.

Massachusetts is one of many states – now more than half – with statutes permitting marijuana use for medicinal purposes.  Those state laws protect users from criminal prosecution, but the large majority of the statutes (including in Massachusetts) are silent on whether employers are free to deny employment to those who test positive for “medical marijuana.”  Until now, every court to rule on the issue had held that employers may refuse to hire those individuals based simply on a positive test.

With this ruling, employers in the Bay State must revamp their thinking and possibly even hire or retain known medical marijuana users.

Twenty-three states and the District of Columbia have enacted laws which decriminalize the use of marijuana for medical purposes.  Under those statutory schemes, individuals with qualified medical conditions may become registered cardholders and obtain cannabis for medical purposes, often from state-regulated dispensaries.  These developments present an array of new challenges for employers to navigate.

On May 21, 2012, the Ninth Circuit Court of Appeals held in a split decision that the Americans with Disabilities Act (“ADA”) does not bar discrimination based on marijuana use unless that use is authorized under federal law.  In James v. City of Costa Mesa, No. 10–55769, the court held that even marijuana use under a doctor’s supervision in accordance with state law was not protected under the ADA.  The court held that the ADA excludes illegal drug users from its definition of qualified individuals with a disability.  Although generally-applicable California drug laws carve out an exception for uses of marijuana for medical purposes under doctor supervision, there are no such exceptions to the federal Controlled Substances Act.  Since the ADA defines “illegal drug use” by reference to federal law, and the federal law does not authorize marijuana use for medical purposes, the Ninth Circuit Court of Appeals decided that discrimination in the provision of public services based on marijuana use was not prohibited by the ADA.