Why S.C. employers should care about legalized marijuana

Published Sept. 23, 2013

The relaxation of state laws forbidding the possession and use of marijuana, either for recreational or medicinal purposes, has steadily gained traction in the past decade. On August 29, the Justice Department sent a memo to the country’s 94 U.S. attorneys’ offices informing prosecutors that the federal government will not sue to stop newly enacted laws in Colorado and Washington. Those two states recently passed Amendment 64 and Initiative 502, respectively, decriminalizing the recreational use of the drug.

Cherry and GreveyWhile legalized recreational use remains the outlier, lawful medicinal marijuana is far more common. Twenty states and the District of Columbia have laws allowing for medical marijuana, and as of this summer, four additional states have legislation pending. 

Although touted for its ability to treat the symptoms of various diseases marijuana is classified as an illegal Schedule 1 drug under the federal Controlled Substance Act. According to the U.S. government, marijuana has no medically accepted use and has a higher rate of addiction than cocaine, a Schedule II drug.

While marijuana remains illegal in North Carolina and South Carolina, other states’ laws permitting the use of marijuana may have an impact on employers in the Carolinas by way of a job applicant from a state with legalized medicinal marijuana or an employee performing work in such a state.

Though the issue has understandably raised concerns, the truth is that for the most part, employers still have the authority to regulate marijuana use in their workplaces.

Hiring
In Washington and California, employers can refuse to hire an applicant who tests positive for marijuana, even if the marijuana use is legally authorized under state law. Other states, however, have provisions in their statutes that afford applicants and users more protection. In Delaware, Connecticut, Maine, Michigan, Rhode Island and Arizona, employers cannot refuse to hire an otherwise qualified applicant based upon his or her status as a registered medicinal marijuana cardholder. Companies with offices in these states should be mindful of these hiring requirements. 

Drug Testing
Employers can lawfully conduct drug testing to determine if current or prospective employees are using alcohol or drugs, and discipline and/or discharge is permitted if the tests yield positive test results. Potentially contentious issues arise when an employee or applicant uses medical marijuana in accordance with state law, but fails company drug tests for marijuana.

Even if the employee possesses a registry card, many employers opt to discharge the worker in these situations. Not surprisingly, some employees terminated for their use of occupational marijuana have sued their employers, alleging violations of state medical marijuana law and failure to accommodate a disability. The courts, however, have so far consistently sided with employers, uniformly upholding an employer’s decision to discharge medical marijuana users. Additionally, in employment-at-will states, including North Carolina and South Carolina, either party may terminate the relationship at any time with or without cause.

Use in the Workplace
Reconciling state medicinal marijuana laws with the Americans with Disabilities Act has also generated questions. Though medicinal marijuana is legal for the treatment of debilitating medical conditions in certain states, employers are not required to accommodate its use in the workplace. The possession and use of medical marijuana is not protected under the ADA, as marijuana continues to be an illegal, Schedule 1 substance under federal law. Even in states that have enacted medicinal marijuana legislation, registered users do not have a viable claim of discrimination. Accordingly, employers are under no obligation to accommodate its use under the ADA.

Molly Hughes Cherry specializes in employment and labor law at Nexsen Pruet’s Charleston office. Kara Grevey is a third-year law student at the University of South Carolina School of Law.

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