This is a question about which Iowa employers are increasingly concerned.  The probability your employees and applicants for employment have used marijuana in some form has substantially increased in recent years.    Medical marijuana use is now legal in 34 states and the District of Columbia.  Recreational use is legal in ten states.    But, marijuana is still classified as a “Schedule I” drug under the Federal Controlled Substances Act, making it illegal to possess, use, or sell.  The very fact that marijuana is classified as a Schedule I drug means the Food and Drug Administration has determined it has no currently accepted medical use, a lack of accepted safety for use under medical supervision, and a high potential for abuse.

Enacted in 2017 and effective in 2018, Iowa’s medical marijuana law permits persons with certain debilitating medical conditions to use medical cannabidiol (the chemical from the cannabis plant). Medical conditions covered by the law include cancer or other terminal diseases if they result in severe or chronic pain, nausea or severe vomiting, or severe wasting; multiple sclerosis s with severe and persistent muscle spasms;  seizures, including seizures related to epilepsy, AIDS or HIV, Chrohn’s disease, ALS (Lou Gehrig’s disease), Parkinson’s, and pain that is “untreatable.” The person who uses medical marijuana must obtain a “medical cannabidiol registration card”, which requires  a physician to certify the person has one of the qualifying medical conditions.  A patient with a medical marijuana registration card cannot be prosecuted for use or possession; the law also protects the primary caregiver of the patient from prosecution for possession of marijuana.

How does this law impact Iowa employers who have a drug-free workplace policy? Iowa’s drug testing law permits employers to test applicants and employees for marijuana; if the test is positive the employer may lawfully refuse to hire the applicant or may terminate the employee.   An Employer may also lawfully prohibit the possession and use of marijuana on its premises.   But, in light of the medical cannabis law, can an employer lawfully take adverse action against a person who fails a drug test because of his or use of medical marijuana?

The short answer is, it’s too soon to tell.   On one hand, there is nothing in the medical cannabis law that protects an employee or applicant from adverse action because of positive marijuana drug test.  The drug testing law also specifically provides that an employee or applicant with a confirmed positive drug test is not, by virtue of the test result alone, considered a person with a disability for purposes of state or local law. Moreover, the fact that marijuana possession and use remains illegal under federal law because of its potential to cause harm should support an employer’s right to test for marijuana and act on a positive test.

On the other hand, there are also reasons for employers to be concerned.   First, just because a positive drug screen does not qualify as a disability under Iowa law does not mean it won’t under the federal Americans with Disabilities Act (ADA).   The debilitating diseases that qualify a person to use medical marijuana in Iowa probably qualify as disabilities under federal law.   In addition, the Iowa legislature through this law has obviously expressed  that use of approved medical marijuana in certain circumstances is the public policy of the State.  To terminate an employee who tests positive but complies with the medical marijuana law could support a common law wrongful discharge claim.

Cases from other states have come down on both sides.   A 2015 decision of the Colorado Supreme Court held that an employer has the right to fire an employee who tested positive for marijuana used for medical purposes.  This decision is from a state where even recreational use is legal; but the Colorado Court ruled that, because marijuana use remains illegal under federal law, the employer could not be sued.   A more recent case from a federal court in Delaware had a different result; despite the prohibition in the Federal Controlled Substances Act, the court ruled a terminated employee could sue under a Delaware statute that prohibited discrimination in employment against persons who used marijuana for medical reasons.  While these cases may provide some guidance, because each state’s law is different, decisions from other states may or may not be useful as precedent in disputes about Iowa’s law.

What can you do to maintain a drug-free workplace policy while at the same time protecting yourself from employee lawsuits? Here are a few action items:

  • If an employee or applicant with a valid medical cannabidiol registration card tests positive for marijuana, pause before taking any action.   You should engage in the interactive process with that employee to find out whether the condition for which the employee takes medical marijuana may qualify as a disability under the law. If it does, consider whether waiving the drug free workplace policy is a reasonable accommodation.
  • If the job involves a safety sensitive position, you should have more leeway to take action with a positive test result; in that case, waiving the policy may not be reasonable.   Revise job descriptions to ensure safety sensitive positions are clearly identified.
  • Continue to act in cases where there is evidence of intoxication or impairment.   Just because someone has a license to use medical marijuana does not give them the right to be impaired at work.   But, it is important to note that, unlike with alcohol impairment, there is no test to determine when a person is legally impaired by marijuana use.
  • Train supervisors on how to handle questions, perceived violations, and testing.
  • Train HR personnel to have a sound understanding of drug testing procedures, including interpretation of test results; HR needs to learn to avoid knee-jerk reactions to a positive marijuana drug test.
  • For unionized employers, make sure your drug testing policy is part of the collective bargaining agreement; try to have as much discretion as possible in modifying and administering the policy.

 

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Patrick Smith

Patrick Smith represents public and private employers in a broad spectrum of employment law matters, including employment discrimination, retaliation, wage and hour issues, FMLA, whistle-blower claims, defamation, and union related issues.

Patrick is an experienced litigator and trial lawyer. He regularly appears in state and federal trial courts throughout Iowa, as well as before the Iowa Supreme Court, Iowa Court of Appeals, and United States Court of Appeals for the Eighth Circuit. He practices before administrative agencies with jurisdiction over employers, including the Equal Employment Opportunity Commission (EEOC), Iowa Civil Rights Commission, and National Labor Relations Board (NLRB). Patrick litigates cases involving single plaintiffs, multiple plaintiffs, class actions, and collective actions.

Although a frequent litigator, one of Patrick’s goals is to help his clients avoid litigation. To that end, his practice includes consulting with employers on legal compliance, HR audits, drafting employment policies and handbooks, management training, and internal investigations. He is a frequent presenter on a wide range of employment law topics and publishes this blog.