Waiting to Exhale: Delaware’s Medical-Marijuana Law

medical_marijuanaMedical-marijuana laws have been blazing a trail across the U.S. since California’s passage of Proposition 215 in 1996.  This year, the Delaware General Assembly began experimenting with marijuana legislation.  With the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011, which was signed by Governor Markell immediately, Delaware joined the 15 other states and the District of Columbia that have bills legalizing marijuana for medicinal purposes.

S.B. 17 shares many common elements with medicinal marijuana legislation across the country.  But there are some key differences that could have a major impact on Delaware employers.  Essentially, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delawareans with certain specific debilitating medical conditions and who have received certification of a physician, must apply for a state-issued medical marijuana card.  Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.

Cardholders will be able to legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers.”  There will be only one state licensed dispensary in each county.  The Delaware Department of Health and Social Services, which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.

Unlike many other states’ medicinal-marijuana laws, S.B. 17 contains provisions that apply directly to employers. Specifically, although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. The new law also makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.

This point is further clarified by a subsequent provision in the law, which states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test.  Regardless of the the passage of S.B. 17, it is important to note that marijuana use remains illegal under the federal Controlled Substances Act.

Obviously, S.B. 17 creates a range of new issues for Delaware employers. These issues are particularly clustered around accommodating the use of marijuana by cardholder employees, enforcement of workplace drug policies, and reconciling state and federal law.  Thankfully, Delaware employers can look to decisions in other states for potential guidance under our own new law.

Across the country, courts have regularly held that employers have no duty to accommodate medical marijuana use, under either state law or the federal Americans with Disabilities Act. For example, in 2010, the Oregon Supreme Court held that an employer had no duty to accommodate medicinal marijuana use under state law or the ADA because it was illegal under federal law. See Emerald State Fabricators, Inc. v. Bureau of Labor & Industries (Ore. 2010). The California Supreme Court reached a similar conclusion in 2008 in Ross v. Raging Wire Telecommunications, Inc. (Cal. 2008). In Ross, the employee claimed that the company violated California’s state disability discrimination law by failing to provide him with a reasonable accommodation related to his use of medicinal marijuana and firing him for failing a pre-employment drug screening test. The court rejected the employee’s claims, however, because California’s state law, like the ADA, does not protect individuals who are currently using illegal drugs.

Remember, though, that Delaware’s new medicinal-marijuana law is less employer-friendly then those in many other states. Thus, the value of precedent from other jurisdictions may be limited in interpreting our new law.

Delaware employers should review S.B. 17, and revise their drug testing policies to provide for testing of medical marijuana cardholders. In addition, it is recommended that employers develop a policy to address employee’s use of medical marijuana. Finally, keep in mind that some jobs are subject to federal regulations prohibiting drug use and imposing testing requirements that cannot be overridden or abrogated by state law.