- Posted by Ellie Perka
- On March 30, 2018
Part I of this series discussed Washington’s statutes surrounding recreational marijuana and its increasing use among Washington’s younger demographics. Part II discusses how these laws impact the construction industry and how various courts across the country have decided marijuana-related employment disputes. Finally, it provides some guidance for employers trying to ensure job site safety in a recreational state.
Impact on Employment in the Construction Industry
A reduction in the stigma around marijuana use could have a significant impact on the construction industry. Irrespective of the arguments in favor of, or against marijuana usage, its use in the workplace undoubtedly raises safety concerns in the construction industry. Construction jobsites are inherently dangerous places to work and construction employees are responsible for tools and machinery that can cause serious injuries.
As marijuana use increases, issues may arise for contractors attempting to enforce drug-free workplace policies. The duration of impairment from marijuana may be longer than alcohol and could last 24 or 48 hours. For chronic consumers, it can remain in one’s system for up to a few weeks.  In addition to having a long duration of impairment, chronic marijuana users may suffer from long-term brain effects that could impair ability to maintain a safe workplace, even if not actually impaired by the drug.
It is unlikely that construction employers would ever be required to permit marijuana use on a jobsite, given safety issues. However, the question of whether an employer must allow (or “accommodate”) off-duty marijuana use to treat medical issues is less clear.
To date, there have been very few cases on point so there is little authority to help guide employers. However, the few cases on this issue are usually favorable to employers’ enforcing drug-free workplace policies.
For example, in In Roe v. Teletech Customer Care Mgmt., the Washington Supreme Court held that Washington’s Medical Use of Marijuana Act (MUMA) did not provide a private cause of action for employees discharged for violating an employer’s anti-drug policy, even if the employee lawfully used marijuana pursuant to MUMA. The court reasoned that since marijuana remains illegal under federal law, employers in Washington are not required to permit illegal activity in the workplace.
Similarly, in Coats v. Dish Network, LLC, the Colorado Supreme Court held that the termination of an employee for his use of medicinal marijuana, at home during non-working hours, was lawful. The employee was a quadriplegic, confined to a wheelchair since he was a teenager. As permitted in Colorado, he registered for and obtained a state-issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia. He consumed medical marijuana at home, after work, in accordance with his license and Colorado state law. For three years, he worked at Dish Network, LLC as a telephone customer service representative. During a random drug test, he tested positive for tetrahydrocannabinol (“THC”), a component of medical marijuana and Dish fired him. The employee filed a wrongful termination claim against his former employer. Similar to Washington’s Supreme Court in Roe, the Colorado Court held that, as marijuana remained illegal under federal law, that the employee could be terminated for his use of medical marijuana.
Also, the Supreme Court of California held in Ross v. Ragingwire Telecommunications, Inc. that an employer does not need to “accommodate” medical marijuana usage. In Ross, the employee suffered from strain and muscle spasms in his back because of injuries sustained while serving in the United States Air Force. He qualified as disabled under California law and received governmental disability benefits. After failing to obtain relief from other medications, his physician recommended he begin medical marijuana use, as permitted under California law. He was hired as a systems administrator at Ragingwire Telecommunications, Inc., a telecommunications company and required to take a mandatory drug test. After a few days’ employment, he was informed that he had failed the drug test. He was suspended and, ultimately, terminated.
He sued, arguing that the telecommunications company had wrongfully terminated him, violating California law for failing to “accommodate” his marijuana use and that his termination was against public policy. He argued that his disability and use of marijuana to treat pain did not affect his ability to do the essential functions of the job. He had worked in the same field since he began to use marijuana and had performed satisfactorily, without complaints about his job performance, and that his firing was unlawful. The California Court disagreed—in accord with Roe and Coats, it held that the termination was legal as marijuana use was still prohibited under federal law. It explained that marijuana “remains illegal under federal law because of its ‘high potential for abuse.’” It further held that, as federal law prohibits marijuana possession, the termination did not violate public policy.
However, employers should be aware of a very recent opinion from the Massachusetts’ Supreme Court where the Court took an opposite approach. In Barbuto v. Advantage Sales and Marketing LLC,  the Massachusetts Court ruled that a woman who had been fired for testing positive for legally prescribed marijuana could sue her former employer for discrimination. Importantly, the Court only held that the employee had a colorable cause of action—it remanded for a finding on whether or not the termination was, in fact, discriminatory. In making such a finding, the Court cautioned that, while the case could to a jury, the employer could justify the termination on many grounds. “For instance, an employer might prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an ‘unacceptably significant’ safety risk to the public, the employee, or her fellow employees.”
In Barbuto, the employee suffered from Crohn’s disease and was prescribed marijuana from her physician to treat her low appetite, a side effect of the disease. After being informed she would be required to take a mandatory drug test by her employer, she explained that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes; and that, as a result, she was a qualifying medical marijuana patient under Massachusetts law. She added that she did not use marijuana daily and would not consume it before work or at work. She was fired after her first day of work at the marketing agency as she failed a drug test, testing positive for marijuana. The Court held that if a doctor concludes medical marijuana is the most effective treatment for an employee’s debilitating condition, “an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.” It explained, contrary to the holdings of Roe, Ross, and Coats, “The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation.”
Where do we go from here?
As safety is paramount on all construction sites, prudent employers should continue to take steps to ensure a drug-free workplace, drug-free workplace policies and drug-testing policies and procedures. These policies should emphasize safety and remind employees that impairment by drugs and alcohol is not permitted and that medical marijuana use is not exempt from the policy. Company policies should further articulate that marijuana usage for any purpose remains illegal under federal law and that the company intends to follow all laws, including the stricter federal law, where applicable.
Like the Court cautioned in the recent Barbuto case, it is very likely that given the safety considerations that are paramount in the construction industry, terminating a construction employee for marijuana use—even if medically necessary—will be considered justified and lawful, if challenged in court. This issue, however, remains unsettled and construction employers should treat this issue carefully and have in place robust drug-free workplace policies and drug-testing policies.
 171 Wn.2d 736, 257 P.3d 586 (2011)
 350 P.3d 849 (Co. 2015)
 42 Cal.4th 920 (Ca. 2008)
 No. SJC-12226, 2017 WL 3015716 (Mass. July 17, 2017)