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NLRB and Judges Keep Changing the Legal Landscape: Part Two

Aug 07, 2018

Last time, we looked at how the NLRB’s frequent changing of its interpretations of the National Labor Relations Act keeps employers in a difficult position of not knowing quite what the law is, from time to time, and from administration to administration. 

A similar conundrum faces contractors in dealing with marijuana use among their employees as the movement to legalize it grows. Marijuana is still illegal under federal law. And for the most part, lawmakers, courts, and other state and local agencies have been reluctant to force employers to accommodate the use of recreational and even medical marijuana where it would put the company into conflict with the federal law. However, there have been a case or two where the presiding authority has not taken that view.

In 2017, an applicant for employment sued her would-be employer after the company withdrew its offer following a drug test that showed positive for marijuana. The individual alleged a violation of Connecticut’s Palliative Use of Marijuana Act which prohibits discrimination against an applicant or employee for the medical use of marijuana. The employer argued that the use of marijuana is a crime under the federal Controlled Substances Act and that the federal Americans with Disabilities Act clearly states that current use of an illegal drug is not protected by the Act. The employer further argued that federal law prevailed in this case, but the U. S. District Court disagreed, finding that neither of those laws were “employment laws” and therefore the Connecticut law prevailed and found for the individual.

More recently, a New Jersey Workers’ Compensation judge ruled that Freehold Township must reimburse its employee for the cost of the medical marijuana he used to treat his work-related injury. Although the Township argued that it was barred from doing so by the federal Controlled Substances Act and the Township would be participating in an illegal activity, the workers compensation judge said he couldn’t understand how just signing a check for the drug would make someone complicit in the distribution of illicit narcotics.   

A contrary decision was delivered by the Maine’s Supreme Court, however. It reversed a worker’s compensation court order requiring a paper company to reimburse an employee for the cost of medical marijuana under Maine’s medical marijuana statute. The Maine court ruled that requiring the company to pay for the marijuana would force it to engage in criminal “aiding and abetting” conduct prohibited by the Controlled Substances Act. 

Chapters should review state law to see whether their provisions impose an obligation on employers to pay for employee’s medical marijuana or limit their right to refuse to hire and/or discipline employees for the off-duty use of marijuana. Despite the above cases, the courts have consistently held that employers may act against employees for the use of or for being under the influence of marijuana on the job.

Missed Part 1? 

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