Marijuana is back in the news. This is unwelcome news for employers who want to retain maximum power to choose where and how to set policy concerning marijuana usage by employees but fear the ever-expanding body of Delaware-specific and employee-friendly employment laws.
Medical marijuana has been legal in Delaware for several years through the Delaware Medical Marijuana Act ("DMMA"). Under this law, a person must obtain a card and register to be a legal user. This is an option for someone with a demonstrable, debilitating medical condition.
DMMA has an uncommon provision among the states that have legalized medical marijuana - an anti-discrimination provision impacting employers. Unlike other Delaware discrimination laws that apply only to employers having four or more employees, DMMA applies to every employer. Specifically, DMMA prohibits discrimination against a person in hiring, termination, or any term or condition of employment if such is "based upon" the person's status as a cardholder or a registered qualifying patient's positive drug test for marijuana components or metabolites.
There are exceptions that make such discrimination lawful, including if failure to discriminate would "cause" the employer to lose a monetary or licensing-related benefit under federal law or federal regulations. This leads some employers to seek legal help with addressing the effect of having something less than a "zero tolerance" policy or practice Another exception that permits "discrimination" includes if the employee used, possessed, or was "impaired by" marijuana at the place of employment or during the hours of employment.
DMMA separately states that nothing in the marijuana law requires an employer to allow the ingestion of marijuana in any workplace or to allow any employee to work while "under the influence" of marijuana. That exception does not simply apply because a registered, qualifying employee has the presence of marijuana.
Furthermore, DMMA states nothing in the marijuana statute prohibits an employer from disciplining an employee for ingesting marijuana in the workplace or working while "under the influence" of marijuana.
Notably, "impaired by" and "under the influence" are terms separately used but neither is defined. Much more ambiguity exists within this law. All of this creates legal risk and a human resources landmine field for an employer when dealing with marijuana in the workplace.
Efforts to expand legalization beyond medical
Initial efforts to expand legalization beyond medical failed, culminating in the creation of a Marijuana Task Force. In June 2018, there was another push to legalize marijuana beyond the medical context. The amendment to the prior version of the bill claimed to "incorporate the recommendations" from participants of the Marijuana Task Force, which included the Delaware Chamber of Commerce.
The provision from the prior bill applicable to employers was proposed to be amended to state that nothing in this chapter is intended to require an employer to permit or accommodate, while the employee is at work, the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana.
The proposed amendment also stated that nothing in this chapter is intended to affect the ability of employers to: (1) Have policies restricting the use of marijuana by employees at work; (2) Have policies necessary to prevent the loss of a monetary or licensing-related benefit under federal law or regulations; (3) Discipline employees under policies necessary to prevent the loss of a monetary or licensing-related benefit under federal law or regulations; or (4) Discipline employees who are under the influence of marijuana at work.
The amendment defined "work" as service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied. Therefore, "at work" was proposed to mean while engaged in service - rather than while at some location. "Under the influence" was defined to mean that because of marijuana use, the individual is less able than the individual would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in exercising the responsibilities of their job.
These changes were regarded by many to remain highly problematic for a number of reasons, and even to create additional problems for employers.
Recent case law applying DMMA
This past December 2018, the Delaware Superior Court answered a few important questions about DMMA in Chance v. Kraft Heinz Foods Company. First, the court held that DMMA was not pre-empted by a federal law called the Controlled Substance Act ("CSA"), which generally makes marijuana usage unlawful under federal law, with no exception for medical use.
On this point, the court explained that the CSA does not make it illegal to employ someone who uses marijuana. The court also explained that DMMA does not require employers to participate in an illegal activity (the unauthorized manufacture, dissemination, dispensing or possession of controlled substances) but instead prohibits them from discriminating based upon medical marijuana use.
The court also held that even though DMMA did not expressly authorize a private right of action by an employee, one was implied and therefore available to an aggrieved employee. The court further held that an employee who pleads the fact of being a medical marijuana cardholder does not amount to pleading the existence of a disability under Delaware's disability law - even though to have a card means to have a debilitating medical condition, which is defined to include a chronic or debilitating disease or medical condition.
In addition to providing clarity about DMMA, this case reinforces the point that ambiguity can result in time-consuming and expensive litigation; and unique provisions like the discrimination provision in DMMA most definitely warrants attention in determining how to handle employment situations.
This case also illustrates that Delaware employers should pay attention to bills that have employment provisions and get involved in the law-making process.
Whether for or against the expansion of legalization of marijuana, nobody should assume that efforts to impact lawmaking are for naught. If Delaware employers do not like the trend that can be predicted to continue, they should get up, stand up, and speak up before yet another area of rights to manage their business as they consider best goes up in smoke.
Timothy Holly is an employment law partner at Connolly Gallagher LLP. For the past 20 years, he has been devoted to providing practical advice to both employers and employees. He serves as chair of the Delaware State Chamber of Commerce's Employer Advocacy and Education Committee and frequently speaks on topics of emerging employment-related issues.