High Stakes: How to Define Disability in Medical Marijuana States in Light of the Americans with Disabilities Act, Canadian Law, and the Impact on Employers


HIGH STAKES: HOW TO DEFINE "DISABILITY" IN
MEDICAL MARIJUANA STATES IN LIGHT OF THE

AMERICANS WITH DISABILITIES ACT, CANADIAN
LAW, AND THE IMPACT ON EMPLOYERS

Lindsey M. Tucker*

INTRODUCTION

Since California first blazed the trail to legalize medical marijuana by
voter referendum in 1996, fourteen states and the District of Columbia have
followed suit in an attempt to relieve patients from their torn decision
between medicating themselves with medical marijuana and committing a
crime.I The states have done this by removing or lowering state
criminalization associated with marijuana possession and use for medical
purposes. 2 Although states are rolling in the direction of legalizing medical
marijuana, federal law is clear that marijuana is still an illegal Schedule I
controlled drug with no recognized medical value. 3 In line with federal
law, the Americans with Disabilities Act precludes the recognition of a
marijuana addiction accompanied by current marijuana use to qualify as a
disability under the Act.4 While an addiction to marijuana is not a disability
in the United States, recent Canadian case law concluded the opposite.5

Neither our northern neighbor's position nor a minority of states' medical
marijuana laws should make the rest of the United States second guess the
legality of disability discrimination laws. 6

Although medical marijuana laws provide a compassionate answer
for treatment-related issues in patients' lives, they leave questions open as
to the impact on other realms of life, like employment.8 In Canada, medical

* Doctor of Jurisprudence, Indiana University School of Law-Indianapolis,
May 2011. I would like to thank my husband Ryan, my parents Doug and Linda Nies, and
my extended family and friends for their support. I would also like to thank Professor
Steven Miller for his research guidance and encouragement.

1. Active State Medical Marijuana Programs, NAT'L ORG. FOR THE REFORM OF
MARIJUANA LAWS, http://norml.org/index.cfm?Group ID=3391 (last updated Dec. 1, 2004).

2. Id.
3. 21 U.S.C. § 812 (2000).
4. Facts About the Americans with Disabilities Act, U.S. EQUAL EMP'T OPPORTUNITY

COMM'N, http://www.eeoc.gov/facts/fs-ada.html (last modified Sept. 9, 2008).
5. See Rio Tinto Alcan Primary Metal v. C.A.W.-Canada, Local 2301 (2008),

180 L.A.C. 4th I (Can. B.C.).
6. See infra Parts III, IV.
7. See infra Part I.B.2 (discussing the term "compassion" in the medical marijuana

context).
8. See infra Part I.B.2 (discussing state case law regarding medical marijuana).



IND. INT'L & COmP. L. REV.

marijuana laws have a direct effect on employers.9 Canadian law requires
employers to reasonably accommodate and excuse drug test provisions for
medical marijuana users.10  Different treatments between the U.S.
government and the Canadian overnment on medical marijuana users'
employment can be harmonized. In the face of studies showing both the
short- and long-term hysical and cognitive effects of marijuana, employers
have much at stake. For example, employers must consider the impact
upon employees, customers, and other stakeholders when making decisions
for the future of their business regarding the use of medical marijuana in the
workplace.13  With safety and cost concerns, public policy within the
United States is on the side of employers promoting drug-free work
environments.

This Note will not focus on the debate over legalization of marijuana
or medical marijuana. Instead, the discussion will compare the effect that
current medical marijuana laws have on established disability
discrimination laws in the employment arenas of the United States and
Canada. The analysis of U.S. statutory and case law will be limited to
California, as the medical marijuana vanguard; Oregon, with much ongoing
activity regarding its statutory and case law; and Michigan, as an Indiana
neighbor and one of the most recent states to enact medical marijuana
legislation.

Part I of this Note discusses the definition of marijuana and its
purposes. Part I also explores the evolution of medical marijuana laws in
the United States and Canada. Part II assesses the current statutory and
case law regarding disability discrimination in the employment context in
both the United States and Canada. Part III discusses the operational,
economic, and public policy effects that medical marijuana has on the
workplace. Part IV discusses how U.S. and Canadian law can be
harmonized. Finally, Part V recommends that states protect an employer's
right to enforce drug-free workplaces, draft medical marijuana acts
cautiously, and pass bills to clarify existing medical marijuana acts.
Additionally, Part V recommends that courts continue to read medical
marijuana laws in light of their purpose of decriminalization of the use of
medical marijuana, and that U.S. federal and state governments come to a
uniform decision on how medical marijuana laws impact employment laws.

9. See Rio Tinto, 180 L.A.C. 4th 1; N. Am. Constr. Grp. Inc. v. Alberta, 2003 ABQB
755 (Can. Alta.); Geldreich v. Whisper Corwood LP, 2009 BCHRT 178 (Can. B.C.).

10. See Rio Tinto, 180 L.A.C. 4th 1; N. Am. Constr., 2003 ABQB 755; Geldreich, 2009
BCHRT 178.

11. See infra Part IV.
12. See infra Part IIl.
13. Id.
14. Id.

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I. BACKGROUND ON MEDICAL MARIJUANA, LEGALIZATION
OF MEDICAL MARIJUANA, AND THE U.S. AND CANADIAN

EMPLOYMENT LAW SYSTEMS

A. Medical Mariuana

15
Cannabis sativa is the plant more commonly known as marijuana.

Marijuana has two recognized uses: recreational and medical.16 These two
uses may result in different legal consequences.17 The use of marijuana for
recreational purposes is illepal throughout most of the world including the
United States and Canada.' However, the use of marijuana for medicinal
purposes dates back to 2700 B.C.19 Marijuana has been "promoted for a
variety of conditions based on its putative analgesic, sedative, anti-
inflammator7 , antispasmodic, antiasthmatic and anticonvulsant
properties." Marijuana's use has been recognized for the treatment of
acquired immune deficiency syndrome or AIDS, cancer and chemotherapy-
induced nausea and vomiting, glaucoma, multiple sclerosis spasticity, and

epilepsy,21 as well as chronic pain, arthritis, and migraines.2
While there are recognized medical benefits associated with the use of

marijuana, there are also well-known harms, regardless of its use for
medical or recreational purposes. Marijuana can either be smoked or
swallowed; either form of consumption has intoxicating effects and
potential harmful health consequences, such as euphoria, slowed thinking
and reaction time, confusion, impaired balance and coordination, cough,
frequent respiratory infections, impaired memory and learning, increased
heart rate, anxiety, panic attacks, tolerance, and addiction.23 In the 1930s,
the United States staged a "war on marijuana" by associating fear with
marijuana use through stories and movies produced by the Federal Bureau
of Narcotics entitled "Marijuana-Assassin of Youth", "Marijuana-Sex-

15. Peter J. Cohen, Medical Marituana: The Conflict Between Scientific Evidence and
Political Ideology, 2009 UTAH L. REv. 35, 37 (2009).

16. Id. at 39-40.
17. See infra Parts I.B-C.
18. Cohen, supra note 15, at 37.
19. Id. at 35.
20. Report 10 of the Council on Scientic Affairs (1-97), AMERICAN MEDICAL

ASSOCIATION, http://www.ama-assn.org/ama/no-index/about-ama/13580.shtml (last visited

Apr. 10, 2011).
21. Id.
22. CAL. HEALTH & SAFETY CODE ANN. § 11362.5 (A) (West 1996).
23. Commonly Abused Drugs, NAT'L INST. ON DRUG ABUSE, NAT'L INSTS. OF HEALTH,

http://www.nida.nih.gov/DrugPages/DrugsofAbuse.html (last visited Apr. 10, 2011).

2011] 361



IND. INT'L & COMP. L. REv.

Crazy Drug Menace", and "Reefer Madness."24 Through these press tools,
the bureau conveyed the message that "casual marijuana use ... [would
lead swiftly to murder, rape, prostitution, addiction, madness, and death." 2

These portrayals succeeded in characterizing marijuana as a monster, and
the harmful effects and fears associated with the drug masked its potential
health benefits.26

B. Legalization of Medical Marituana in the United States

The United States is a federation consisting of a centralized, federal
government and fifty states each with their own state and local
governments.27 U.S. labor and employment laws exist both at federal and
state levels.28  These federal, state, and local discrimination laws may
conflict with each other.29 Where a conflict exists, the law offering the
greatest protection for employees should govern.30

1. Federal Law

In 1937, the United States passed the 1937 Marijuana Tax Act, the
first federal prohibition of marijuana.31  During congressional hearings,
counsel for the American Medical Association protested the roposed act,
citing the potential for future medical benefits of marijuana. In spite of
those protests, Congress passed the Act on October 1, 1937.33 Although not
explicitly, the Act constructively outlawed marijuana through heavy
administrative burdens and taxation on the grower, distributor, seller, and
buyer. 34 Soon after the Act's passing, most states passed laws making it a
felony to sell or use marijuana.

Currently, marijuana is listed as a Schedule I drug under the federal
Uniform Controlled Substance Act (CSA). A Schedule I drug is a

24. Kara Godbehere Goodwin, Note, Is the End of the War in Sight: An Analysis of
Canada's Decriminalization of Marijuana and the Implications for the United States "War
on Drugs", 22 BUFF. PUB. INT. L.J. 199, 202 (2003).

25. Id.
26. Id.
27. INTERNATIONAL LABOR AND EMPLOYMENT LAW 235 (Philip M. Berkowitz et al. eds.,

2d ed., vol. II 2008).
28. Id. at 247.
29. Id.
30. Id. at 247-48.
31. Abbie Crites-Leoni, Medicinal Use of Marjyuana: Is the Debate a Smoke Screen for

Movement Toward Legalization?, 19 J. LEGAL MED. 273, 275 (1998).
32. Goodwin, supra note 24.
33. Id.
34. Id.
35. Id. at 202-03.
36. 21 U.S.C. § 812 (2000).

362 [Vol. 21:2



HIGH STAKES

substance that "has a high potential for abuse[,] ... no currently accepted
medical use in treatment in the United States[, and] ... a lack of accepted
safety for use of the drug or other substance under medical supervision."37

Concurring with marijuana's characterization as a Schedule I drug, the
United States Food and Drug Administration (FDA) maintains that
marijuana has harmful effects and is not an approved pharmaceutical. 38

However, contrary state laws frustrate "the efforts to ensure that
medications undergo the rigorous scientific scrutiny of the FDA approval
process and are proven safe and effective under the standards of the [Food,
Drug and Cosmetics] Act."39

In 2005, the United States Supreme Court in Gonzales v. Raich
upheld the enforcement of the CSA against using and distributing medical
marijuana even though their actions were legal under state law.40 This
permitted the United States Drug Enforcement Administration (DEA) to
continue marijuana raids, even if those raids targeted individuals using or
selling medical marijuana in compliance with state law.41

However, Gonzales is not the final say on DEA enforcement of the
CSA in medical marijuana states. When President Barack Obama took
office on January 20, 2009, he brought a different view than the previous
administration on the enforcement of the CSA, which insisted on enforcing
federal drug laws regardless of state laws.42 On October 19, 2009, the U.S.
Department of Justice, under President Obama's direction, issued a
memorandum clarifying investigations and prosecutions in states with
medical marijuana laws. When marijuana is used or provided in
accordance with state law, the memorandum states that "it is not a good use
of federal manpower to prosecute those who are without a doubt in
compliance with state law."4 Rather, the memorandum urges that federal
resources be used on the prosecution of people distributing and trafficking
drugs and those using medical marijuana as a cover for other illegal
conduct. 45

37. Id. § 812(b)(1).
38. Inter-Agency Advisory Regarding Claims that Smoked Maryuana is a Medicine,

U.S. FOOD AND DRUG ADMIN. (Apr. 20, 2006), http://www.fda.gov/NewsEvents/Newsroom/
PressAnnouncements/2006/ucm108643.htm.

39. Id.
40. See Gonzales v. Raich, 545 U.S. 1, 2 (2005).
41. See Feds: No More Arrests for Pot Smoking Patients, MSNBC (Oct. 19, 2009,

11:02:03 AM), http://www.msnbc.msn.com/id/33376482/ns/health/?GT1=43001.
42. Id.
43. Id.
44. Id.
45. Id.

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IND. INT'L & CoMP. L. REV.

2. State Law

Despite the federal government's position on medical marijuana,
fifteen states, including Alaska, Arizona, California, Colorado, Hawaii,
Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon,
Rhode Island, Vermont, and Washington, as well as the District of
Columbia, have legalized medical marijuana through either state
legislatures or voter referendums through compassionate use acts.46

Maryland also has a compassionate use act but instead of complete
legalization, the state criminal penalty has been lowered to a one-hundred
dollar fine.47

California was the first state to enact medical marijuana legislation.48
The Compassionate Use Act of 1996 decriminalized the usage and sale of
medical marijuana in California.49 The Act provides that its purpose is
"[t]o ensure that patients and their primary caregivers who obtain and use
marijuana for medical purposes upon the recommendation of a physician
are not subject to criminal prosecution or sanction."50  However, even
though the Act safeguards a patient's right to use marijuana for medical
purposes, the Act is not to "be construed to supersede legislation
prohibiting persons from engaging in conduct that endangers others."51

Oregon passed the Oregon Medical Marijuana Act in 1999. It states:

[A] person engaged in . . . medical use of marijuana is
excepted from the criminal laws of the state for possession,
delivery or production of marijuana, aiding and abetting
another in the possession, delivery or production of

46. ALASKA STAT. §§ 17.37.030-17.37.040 (1999); CAL. HEALTH & SAFETY CODE ANN.

§ 11362.5 (West 1996); COLO. REv. STAT. ANN. § 18-18-406.3 (West 2001); HAW. REV.
STAT. ANN. § 329-122 (West 2000); 2008 Me. Legis. Serv. 631 (West); MICH. COMP. LAWS

ANN. §§ 333.26424-333.26428 (West 2008); MONT. CODE ANN. §§ 50-46-201, 50-46-205
(2004); NEV. REv. STAT. ANN. § 453A.200 (West 2000); N.J. STAT. ANN. § 24:61 (West
2010); N.M. STAT. ANN. § 26-2B-4 (West 2007); OR. REv. STAT. ANN. §§ 475.316, 475.340
(West 1999); R.I. GEN. LAWS ANN. § 21-28.6-4 (West 2006); VT. STAT. ANN. tit. 18, § 4474b
(West 2004); WASH. REv. CODE ANN. §§ 69.51A.005-69.51A.060 (West 1999); 2010 Ballot
Propositions and Judicial Performance Review, ARIZ. OFFICE OF THE SEC'Y OF STATE, ARIZ.

DEP'T OF STATE, http://www.azsos.gov/election/201 0/info/PubPamphlet/english/Prop

203.htm (last visited Apr. 10, 2011); A Bill, 18-622, in the Council of the District of
Columbia, NAT'L ORG. FOR THE REFORM OF MARIJUANA LAWS,

http://norml.org/pdf files/AINSaspassed atCOW_4_20_2010.pdf (last visited

Apr. 10, 2011); Ashley Southall, Washington, D.C., Approves Medical Use of Marituana,
N.Y. TIMES (May 4, 2010), http://www.nytimes.com/ 2010/05/05/us/05marijuana.html.

47. Active State Medical Marituana Programs, supra note 1.
48. Id.
49. CAL. HEALTH & SAFETY CODE ANN. § 11362.5 (West 1996).

50. Id.
5 1. Id.

[Vol. 21:2364



HIGH STAKES

marijuana or any other criminal offense in which
possession, delivery or production of marijuana is an
element.5 2

Michi n passed its Medical Marihuana Act in 2008 via voter
referendum. Michigan's law is similar to California's and Oregon's, but
some striking differences exist. 54  Regarding protections for medical
marijuana users, Michigan's law states:

A qualifying patient . . . shall not be subject to arrest,
prosecution, or penalty in any manner, or denied any right
or privilege, including but not limited to civil penalty or
disciplinary action by a business or occupational or
professional licensing board or bureau, for the medical use
of marihuana in accordance with this act.ss

However, the exceptions and scope of Michigan's law create a conflict
regarding its legal protections. For example, Michigan's law does not
require an employer to accommodate the use of medical marijuana by its
employees and even goes as far as to itemize specific settings in which the
influence of marijuana is not allowed: 56

(b) This act shall not permit any person to do any of the
following: (1) Undertake any task under the influence of
marihuana, when doing so would constitute negligence or
professional malpractice. (2) Possess marihuana, or
otherwise engage in the medical use of marihuana: (A) in a
school bus; (B) on the grounds of any preschool or primary
or secondary school; or (C) in any correctional facility.
(3) Smoke marihuana: (A) on any form of public
transportation; or (B) in any public place. (4) Operate,
navigate, or be in actual physical control of any motor
vehicle, aircraft, or motorboat while under the influence of

52. OR. REv. STAT. ANN. § 475.309(1) (West 1999).
53. Active State Medical Marguana Programs, supra note 1. Additionally, the term

"marijuana" will be primarily used in this Note. However, in order to accurately cite
authorities, "marijuana" and "marihuana" will be used interchangeably in accordance with
the cited authority's use of the term.

54. Compare MICH. COMP. LAWs ANN. §§ 333.26424-333.26428 (West 2008) with CAL.
HEALTH& SAFETY CODE ANN. § 11362.5 (West 1996) and OR. REV. STAT. ANN. §§ 475.316,
475.340 (West 1999).

55. See MICH. COMP. LAWS ANN. § 333.26424 (West 2008).
56. Id. §§ 333.26424-333.26428.

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IND. INT'L & COMP. L. REv.

marihuana ... .7 (c) Nothing in this act shall be construed
to require: (2) An employer to accommodate the ingestion
of marihuana in any workplace or any employee working
while under the influence of marihuana.58

If history teaches anything, it may be that legal challenges to the
application and interpretation of Michigan's law are inevitable, as has been
the case with older acts such as California's and Oregon's compassionate
use acts.59  Additionally, ten states have pending legislation or ballot
measures to legalize medical marijuana, including Alabama, Connecticut,
Delaware, Idaho, Illinois, Maryland, Massachusetts, New Hampshire, New
York, and North Carolina. 60

C. Legalization of Medical Marijuana in Canada

Canada is a federation consisting of ten provinces and three
territories. Canada has two levels of government: federal and
provincial.62  All Canadian jurisdictions prohibit discrimination against
physical or mental disability. The Canadian Human Rights Act governs
such discriminatory practices in employment. 4

The 1923 Opium and Narcotic Drug Act made marijuana illegal.65

Similar to the U.S. current classification, marijuana was considered a
Schedule I drug in Canada. After a period of long, undulated debate and
research as to whether marijuana should be approached on a criminal or
health level, marijuana was reclassified as a Schedule II drug with a lower,
misdemeanor-like criminal penalty for possession by the passage of the
Canadian Controlled Drugs and Substances Act in May of 1997. 67

An Ontario case paved the way for the legalization of medical
marijuana. In R. v. Parker, the Canadian courts signaled the legislature to
step in and legalize marijuana for medical purposes.69 The defendant

57. Id. § 333.26427.
58. Id.
59. See infra Part II.A.
60. 10 States with Pending Legislation to Legalize Medical Mariquana, PROCON.ORG,

http://medicalmarijuana.procon.org/viewresource.asp?resourcelD-002481 (last updated
Apr. 6, 2011, 10:40:13 AM PST).

61. INTERNATIONAL LABOR AND EMPLOYMENT LAW, supra note 27, at 53.
62. Id.
63. Id. at 69.
64. See Canadian Human Rights Act, R.S.C. 1985, c. H-6.
65. Goodwin, supra note 24, at 206.
66. Id. at 208.
67, Id. at 207-08.
68. See R. v. Parker (2000), 49 O.R. 3d 481 (Can. Ont. C.A.).
69. See id. paras. 207, 210.

366 [Vol. 21:2



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suffered from epilepsy and used marijuana to reduce the frequency and
intensity of seizures.70 The defendant's residence was searched and he was
charged with possession of marijuana in violation of the Controlled Drugs
and Substance Act. The court held that by charging the defendant with
possession of marijuana, the criminal imposition impaired his rights under
the Canadian Charter of Rights and Freedom to life, liberty and security of
person.72 A medical exception was read into the Controlled Drugs and
Substance Act for the defendant until the legislature enacted medical
marijuana laws.7 3  Once enacted, Canada's Marihuana Medical Access
Regulations state that "[t]he holder of an authorization to possess is
authorized to possess dried marihuana, in accordance with the
authorization, for the medical purpose of the holder."74

In June of 2001, responding to the decision in R v. Parker, the
Canadian Controlled Drugs and Substances Act was amended, in
connection with the Marihuana Medical Access Regulations, to "allow
possession and purchase of marijuana for legitimate medical needs.,75 The
Marihuana Medical Access Regulations authorize Health Canada, a
department of the Canadian federal government in charge of "helping
Canadians maintain and improve their health, while respecting individual
choices and circumstances," 76 to regulate medical marijuana use and
distribution, which is available to those suffering from "grave and
debilitating illnesses."77 Canada makes the position clear that legalization
only applies to certain authorized medical uses. Further, marijuana is still
considered a controlled substance in Canada although its controlled
substance classification is different than in the United States.79

70. Id. para. 3.
71. Id.
72. Id. para. 152.
73. Id. para. 210.
74. Marihuana Medical Access Regulations, SOR/2001-227 (Can.).
75. Id.
76. About Health Canada, HEALTH CANADA, http://www.he-sc.ge.calahc-asc/index-

eng.php (last modified Feb. 16, 2011).
77. Law Enforcement Issues-Medical Use of Marihuana, HEALTH CANADA,

http://www.hc-sc.gc.ca/dhp-mps/marihuanallaw-loilindex-eng.php (last modified
Sept. 15, 2010).

78. Id
79. Id.

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IND. INT'L & COMP. L. REV.

II. CURRENT U.S. AND CANADIAN DISABILITY
DISCRIMINATION LAWS AND THE EFFECT OF MEDICAL

MARIJUANA USE ON THOSE LAWS

A. U.S. Law

The Americans with Disabilities Act (ADA) is a U.S. federal law
protecting employees from discrimination on the basis of disability.80

Specifically, disability discrimination usually falls under the category of
"disparate treatment cases," which is an "intentional discrimination based
on illegal or protected criteria., Title I of the ADA applies to private
employers, state and local governments, employment agencies and labor
unions, provided that such employers employ fifteen or more employees.82

Title I prohibits employers from discriminating against qualified
individuals with disabilities in "job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment." 83 The
ADA defines a qualified individual as "an individual who, with or without
reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires." 84 The ADA
provides that "[a]n individual with a disability is a person who: [h]as a
physical or mental impairment that substantially limits one or more major
life activities; [h]as a record of such an impairment; or [i]s regarded as
having such an impairment."

Under the ADA, "[a]n employer is required to make a reasonable
accommodation to the known disability of a qualified applicant or
employee if it would not impose an 'undue hardship' on the operation of the
employer's business." An undue hardship is "an action requiring
significant difficulty or expense when considered in light of such factors as
an employer's size, financial resources, and the nature and structure of its
operation."87

The ADA does not protect "employees and applicants currently
engaging in the illegal use of drugs . .. when an employer acts on the basis
of such use."88  Additionally, the ADA's restrictions on medical

80. INTERNATIONAL LABOR AND EMPLOYMENT LAW, supra note 27, at 248.
81. Id.
82. 42 U.S.C. § 12111 (2010).
83. Id. § 12112.
84. Id. § 12111.
85. Facts About the Americans with Disabilities Act, supra note 4.
86. Id.
87. Id.
88. Id.

368 [Vol. 21:2



examinations do not apply to illegal drug tests. Employees who use
illegal drugs can also be held to the same standard as other employees. 90

The Americans with Disabilities Act Amendments Act of 2008 took
effect on January 1, 2009.91 The primary goal of this amendment was to
broaden the scope of coverage for individuals to the maximum extent of the
terms of the ADA. 92  The amendment keeps the basic definition of
disability and alters or expands the definitions of "substantially limits" and
"major life activities.",93 It is yet to be determined whether the amendment
leaves the door open to protections for users of medical marijuana.

In Ross v. RagingWire Telecommunications, Inc., Gary Ross sued his
former employer under the California Fair Employment and Housing Act
(FEHA) because Ross was fired after he failed a pre-employment drug test
due to his use of medical marijuana pursuant to the California
Compassionate Use Act.9 4 Ross qualified as having a physical disability
under FEHA due to strain and muscle spasms in his back; as such, Ross
received disability benefits.9 5 Ross' doctor recommended Ross use medical
marijuana to alleviate his physical symptoms prior to his employment at
RagingWire.96 Ross had to take a pre-employment drug test and was up
front with both the testing facility and his employer regarding his doctor's
medical marijuana recommendation.9 7  Despite the fact that Ross used
marijuana under the recommendation of his doctor, Ross was terminated for
testing positive for marijuana.98 Based on these facts, the court held that
the purpose of the Compassionate Use Act was to eliminate criminalization
of medical marijuana and does not provide a remedy to Ross for the failure
of an employer to accommodate the employee's use of marijuana under the
FEHA.9 9

Justice Kennard, in dissent, did not believe that the California
Compassionate Use Act was intended to allow an "employer [to] fire an
employee for such marijuana use even when it occurs during off-duty
hours, does not affect the employee's job performance, does not impair the
employer's legitimate business interests, and provides the only effective

89. Id.
90. Id.
91. Notice Concerning the Americans with Disabilities Act (ADA) Amendments Act of

2008, U.S. EQUAL EMP'T OPPORTUNITY COMM'N, http://www.eeoc.gov/ada/amendments

notice.html (last visited Apr. 10, 2011).
92. Id.
93. Id.
94. Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 202 (Cal. 2008).
95. Id. at 203.
96. Id.
97. Id.
98. Id.
99. Id. at 204-05.

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IND. INT'L & COMP. L. REV.

relief for the employee's chronic pain and muscle spasms.,,lo Justice
Kennard further argued that when voters gave patients access to medical
marijuana, they did not intend for patients to be excluded from
employment.' 0 ' Justice Kennard would hold that unless an employer shows
that an employee's off-duty use of doctor-approved medical marijuana "is
likely to impair the employer's business operations in some way," the
employee's termination is a result of disability discrimination.102

When interpreting the Compassionate Use Act in light of the facts of
this case, Justice Kennard maintained that "[c]ourts must construe statutes
to effectuate the purpose of the law." 03 Subsection B of the Act provides
that "patients and their primary caregivers who obtain and use marijuana for
medical purposes upon the recommendation of a physician are not subject
to criminal prosecution or sanction."l04 While the majority focused on the
Act's purpose of removing criminalization at the state level, Justice
Kennard emphasized the inclusion of "sanction" in the statutory
provision.lo5 Specifically, he equated termination of employment as a
sanction against marijuana users merely acting pursuant to the Act. 106

Justice Kennard summarized the majority's holding as leaving two choices
for patients seeking to relieve their symptoms with marijuana: "continue [to
receive] the benefits of marijuana use . . . and become unemployed, giving
up what may be their only source of income, or continue in their
employment, discontinue marijuana treatment, and try to endure their
chronic pain [or other continuing symptoms]." 0 7 The dissent believed this
was not the intent of the California voters when they passed the Act. 0 8

Justice Kennard would allow an employer to offer a "reasonable and
effective form of accommodation."l09 The FEHA requires an employer to
make reasonable accommodations for a "known physical or mental
disability of an applicant or employee."11 0 These provisions of the FEHA
regarding reasonable accommodation "are to be construed liberally to
accomplish each of its purposes." The dissent disagreed with the
majority in that "accepting an employee's physician-approved, off-duty
marijuana use for medical treatment is not a reasonable accommodation

100. Id at 209 (Kennard, J., dissenting).
101. Id.
102. Id. at 209-10.
103. Id. at 211.
104. Id. at 210.
105. Id. at 211.
106. Id.
107. Id.
108. Id.
109. Id. at 209.
110. Id. at 211.
111. Id.at211-12.

370 [Vol. 21:2



because federal law prohibits marijuana possession."11 2 The exact wording
of the FEHA includes the "adjustment or modification of examinations,
training materials or policies" as a reasonable accommodation.13 In
applying these suggested accommodations to this case, Justice Kennard
believed that the "modification of an employer's policy, such as a policy
concerning employee drug use" would be reasonable. Justice Kennard
rejected the proposition that something an employee does off duty that is
illegal under federal law but permitted under state law can never be
reasonably accommodated. The factors used to determine if an
accommodation is reasonable consider "its benefits to the employee, the
burdens it would impose on the employer and the other employees, and the
availability of suitable and effective alternative forms of
accommodation."116 An employer can disregard the FEHA if it can show
that the accommodation "would impose an undue hardship on the operation
of its business."117

Therefore, according to Justice Kennard in dissent, RagingWire
would have to show that the employee's off-duty use of medical marijuana,
which is illegal under federal law, would have an adverse effect on its
business operations.' 18 RagingWire raised the argument that it may lose
business opportunities with state agencies or with federal grants because of
its inability to compl' with drug-free workplace requirements imposed by
state and federal law. 19 Justice Kennard rejected this argument because the
purpose of such laws were to "provide a drug-free workplace, which is
defined as a site . . . at which employees of the entity are prohibited from
engaging in the unlawful manufacture, distribution, dispensation
possession, or use of a controlled substance [such as marijuana]."12d
However, Ross was not seeking to use marijuana at the workplace but at
home as a medical treatment.121 Justice Kennard asserted that an
employee's marijuana use at home and an employer's accommodation of
employee's use will not interfere with an employer's drug-free workplace
certification.122

In Washburn v. Columbia Forest Products, Inc., the Oregon Supreme
Court held that an employer does not have to accommodate an employee's

112. Id. at 212.
113. Id.
114. Id.
115. Id.
116. Id.
117. Id.
118. Id. at 213.
119. Id.
120. Id.
121. Id. at 204.
122. Id. at 213.

2011] HIGH STAKES 371



IND. INT'L & COMP. L. REv.

medical marijuana use and that the particular illness from which the

employee suffered did not constitute a disability under state law. 123In
Washburn, an employee was terminated from his position after failing a
drug test because of his use of medical marijuana to address the leg spasms
that he suffered at night.124 The employer had a policy that prohibited
employees from coming to work with alcohol or illegal drugs in their
systems. 125  The employee challenged his termination b alleging the
employer discriminated against him based on his disability. The Oregon
Supreme Court held that the employee was not disabled under Oregon
law.127 Oregon Statutes 659A.100 to 659A.145, based on the provisions of
the Americans with Disabilities Act, provide for the protection of disabled
persons against employment discrimination and mandate reasonable
accommodation by employers for such disabilities.128 The Oregon
Supreme Court interpreted the state definition of disability as allowing for

mitigating factors to counteract a disability.129 Because the employee was
able to counteract the leg spasms with medication, the court held that the
employee's impairment did not rise to the level of a disability as defined by
the state's statute. 130

A concurring opinion in Washburn relied on a different analysis to
reach the same conclusion that the employee was not entitled to a
reasonable accommodation.131 The concurrence stated that accommodation
for medical marijuana use was not required because the federal Controlled
Substances Act preempts state law with respect to reasonable
accommodations. Even for medical purposes, "[t]he Controlled
Substances Act prohibits possessing, manufacturing, dispensing, and
distributing marijuana."l 33 According to the concurrence, the employee
could not use the marijuana without possessing it, thereby violating federal
law; therefore, this violation of federal law preempted state law requiring
the employer to reasonably accommodate the employee's use. 134

In Emerald Steel Fabricators v. Bureau of Labor and Industries, a
temporary worker was hired as a drill press operator in a steel fabricating

123. Washburn v. Columbia Forest Products, Inc., 340 Or. 469, 478-80 (2006).
124. Id. at 472.
125. Id. at 472-73.
126. Id. at 472.
127. Id. at 477-78.
128. Id.
129. Id. at 479-80.
130. Id.
131. Id. at 480-81 (Kistler, J., concurring).
132. Id. at 481.
133. Id. at 481-82.
134. Id.

372 [Vol. 21:2



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business.135 When the worker was hired, he was told that at the end of a
ninety-day period he would have to submit to a drug test before he could be

eligible for permanent employment. 1 The worker used marijuana one to
three times per day for medical purposes; however, he never used marijuana
on the job, his supervisor did not suspect the worker used marijuana, and
the worker produced satisfactory work. 137  As the ninety-day test date
approached, the worker notified his supervisor that he was a medical
marijuana user under Oregon law. The supervisor was unsure what
effect that would have on the worker being offered permanent employment.
One week after the worker notified his supervisor, the decision was made
not to permanently hire the worker.139 The worker filed a complaint with
the Bureau of Labor and Industries (BOLI) Civil Rights Division alleging
the employer "(1) discharged [worker] because of his disability . . . and
(2) failed to reasonably accommodate [worker's] disability . The
employer asserted the following defenses:

[1] Oregon's Medical Marijuana Law does not require
employers to accommodate the use of medical marijuana in
the workplace or to accommodate off-duty use of medical
marijuana in such a fashion that the employee would or
could still be affected by such usage while on duty.
[2] [Employer] is not required to accommodate medical
marijuana users by permitting them to work in safety-
sensitive positions that would or could endanger the safety
of themselves, co-workers or the public. [3] [Employer] is
free to require that employees behave in conformance with
the Federal Drug-Free Workplace Act of 1988. The
protections of that Act do not apply to someone illegally
using drugs, and marijuana is an illegal drug under Federal
Law. [4] Oregon law prescribes that [Oregon's disability
laws] be construed to the extent possible in a manner that is
consistent with any similar provisions of the Federal
Americans with Disabilities Act of 1990 . . . . That Act
does not permit the use of marijuana because marijuana is
an illegal drug under Federal Law. 141

135. Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 186 P.3d 300, 302
(Or. Ct. App. 2008), rev'd, 348 Or. 159 (2010).

136. Id.
137. Id

138. Id
139. Id. at 302-03.
140. Id. at 303.
141. Id. at 303-05 (citation omitted).

2011] 373



IND. INT'L & COmP. L. REV.

The BOLI found that by firing the worker due to medical marijuana
use, the "employer failed to reasonably accommodate [worker's] disability
as required by Oregon statutes on unlawful discrimination against disabled
persons."l42 The Oregon Court of Appeals affirmed the BOLI's decision
due to inadequacies of the preservation of error for review. 143 The result in
Emerald Steel Fabricators clearly conflicted with the holding of the Oregon
Supreme Court in Washburn, leading to the Oreon Supreme Court's
reversal and reiteration of its holding in Washburn.

B. Canadian Law

The Canadian Human Rights Act contains Canada's discrimination
laws.145 Under the Human Rights Act, disability is a prohibited ground of
discrimination. 146 "It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or (b) in the
course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination." 1 "It is a discriminatory
practice for an employer . . . (a) to establish or pursue a policy or
practice ... that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited ground of
discrimination." 14  An employer must accommodate an employee's
disability to the point of undue hardship.149

In Geldreich v. Whisper Corwood, LP, Geldreich alleged employment
discrimination against his employer, Whisper Corwood. The employer
denied discrimination and moved to dismiss the complaint under the
Human Rights Act.'"' Geldreich worked as a Team Leader for the
employer, which ran a saw mill and lumber yard.152 The employer fired
Geldreich after multiple employees reported that Geldreich smoked
marijuana at the mill.1 The employer had both a no-smoking policy and
drug-free policy, of which the employer claimed Geldreich had

142. Id. at 301.
143. Id. at 308.
144. See generally Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries,

348 Or. 159 (2010).
145. See Canadian Human Rights Act, R.S.C. 1985, c. H-6.
146. Id.
147. Id.
148. Id.
149. CANADIAN HUMAN RIGHTS COMM'N, CANADIAN HUMAN RIGHTS COMMISSION'S

POLICY ON ALCOHOL AND DRUG TESTING 2 (2009), available at http://www.chrc-
ccdp.ca/pdf/padt pdda eng.pdf [hereinafter CHRC TESTING POLICY].

150. Geldreich v. Whisper Corwood LP, 2009 BCHRT 178, para. I (Can. B.C.).
151. Id. para. 2.
152. Id. para. 4.
153. Id. para. 5.

[Vol. 21:2374



HIGH STAKES

knowledge.154 The issue before the court was whether Geldreich "had
either an actual or perceived mental disability which was a factor in the
[employer's] decision to terminate him or whether his actual or perceived
mental discrimination required accommodation in the workplace."1 55 The
court held that an obligation to accommodate "is not triggered by casual
drug use against company policy. It is triggered when an employees [sic] is
suffering from an addiction which requires accommodation or
treatment."1 56

In Rio Tinto Alcan Primary Metal v. CA. W-Canada, Local 2301, the
labor Arbitration Board held that an addiction to marijuana constituted a
physical disability under Section 13 of the Canada Human Rights Code. 5 7

An employee was terminated from his job at a smelting plant when he was
caught smoking marijuana during his shift.1s At the time of termination,
the employee had worked for the employer for thirty-four years and had a
good overall work record.159 However, the employee did have a history of
alcoholism and convictions for driving under the influence.160 The
employee had gone to treatment for his alcoholism and had been sober for
over fifteen years. 161 By 2006, marijuana had taken the place of alcohol for
the employee, and he was smoking daily.162 The employee's job with the
employer was in a safety-sensitive position.163 The employer had a zero
tolerance policy, which was communicated to all em loyees and provided
for immediate termination for conduct of this nature.

The arbitration board member relied on the Human Rights Code in
deciding upon the legitimacy of the employee's dismissal.165 The Human
Rights Code is comparable to the Americans with Disabilities Act and
provides that an employer cannot "refuse to continue to employ a person or
discriminate against a person regarding employment . . . because
of. . . physical or mental disability." [6

After deciding that the marijuana addiction was a disability, the board
member looked to see if the disability was a factor in the employee's

154. Id. para. 6.
155. Id. para. 9.
156. Id. para. 14.
157. Rio Tinto Alcan Primary Metal v. C.A.W.-Canada, Local 2301 (2008), 180 L.A.C.

4th 1 (Can. B.C.).
158. Id. paras. 2, 6.
159. Id. para. 7.
160. Id. paras. 7-11.
161. Id. para. 11.
162. Id. para. 10.
163. Id. para. 2.
164. Id. para. 12.
165. Id. paras. 69-75.
166. Id. para. 69.

2011] 375



IND. INT'L & COMP. L. REv.

dismissal.167 The board member found that the addiction led to a lack of
control on the employee's part, including an inability to make choices about
when and where to smoke. 16 This effect of the addiction was in part
attributable to the employee's dismissal, despite the fact that the employer
argued that the employee was dismissed because he was smoking in a
safety-sensitive position and violated the zero tolerance policy.169
Additionally, the board member found that since the addiction qualified as a
disability, the employer had to reasonably accommodate the disability to the
point of undue hardship. 7o Under these circumstances, the board member
concluded that the employee's dismissal should be set aside. 171 The board
member noted that the employee had committed a serious misconduct, but
that the addiction, which led to a loss of control, could be considered a
mitigating factor in determining that the dismissal was inappropriate.172 To
strike a balance between the seriousness of having and using drugs at a
safety-sensitive workplace and the disability of the employee, the board
member concluded the disciplinary action should be a lengthy suspension
followed by reinstatement.

In North American Construction Group, Inc. v. Alberta, a prospective
employee failed a mandatory pre-employment drug test after testing
positive for marijuana. 174 As a result of the failed test, the employee was
not hired.175  The employee brought suit under Alberta's human rights
laws.176 The employee was HIV-positive and smoked marijuana to relieve
nausea.177 The employee sought a position as a heavy crane operator with
the employer.178 The employee had an accident-free safety record. 179 The
employee argued that he was aware of the safety requirement of the position
and that he would never smoke marijuana at the workplace. The
employer refused to hire the employee due to the drug test results and
further alleged that the employee was not up front about his medical

167. Id. paras. 95-106. A board member is the Canadian equivalent to an administrative
law judge in the United States. See Labour Relations Code, R.S.B.C., ch. 244, part 8 (2004),
available at http://www.lrb.bc.ca/code/#part8.

168. Rio Tinto, 180 L.A.C. 4th 1, paras. 46-57.
169. Id. paras. 96-98.
170. Id. paras. 95, 105.
171. Id. para. 102.
172. Id. para. 103.
173. Id. para. 104.
174. N. Am. Constr. Grp. Inc. v. Alberta, 2003 ABQB 755 (Can. Alta.).
175. Id. para. 2.
176. Id
177. Id
178. Id.
179. Id.
180. Id.

376 [Vol. 21:2



HIGH STAKES

marijuana use.181 The court held that the acts of the employer warranted
investigation and determination by a human rihts panel on the legality of
the employer's refusal to hire the employee. The court found that the
complaint had merit "based on the clear evidence of the [employer's] hiring
policy directives, i.e. drug-testing results as a conclusive determination of
physical disability as a basis for denial of employment."l 83

C. Synopsis ofAmerican and Canadian Law

The laws of Canada and the United States are similar regarding
recreational use of marijuana. Both find that a lack of an addiction to
marijuana precludes a finding of disability.184 Beyond this, the two
countries' views diverge. The holding in Rio Tinto defines disability to
include a current addiction to marijuana, even when marijuana is used at the
workplace in a safety-sensitive position. The ADA is clear that a current
addiction to an illegal substance does not constitute a disability.l8 In
continuation of the parallel views, Canada has required accommodation of
medical marijuana use in the workplace, while California, which has the
most liberal view on marijuana legalization in the United States, has held
that state medical marijuana laws do not affect the definition of
disability. 8 7

III. EFFECT OF MARIJUANA IN THE WORKPLACE

Mixing medical marijuana use and the workplace is a dangerous
combination, even if its use occurs outside of work.' 8 8  Public policy
encourages drug-free workplaces, and an employer's tools to promote a
drug-free work environment have increased dramatically over the last few
decades.189 Additionally, even though state laws are becoming increasingly
divergent from federal law with respect to medical marijuana, there are
distinct federal benefits for employers who keep drugs out of the

18 1. Id.
182. Id. para. 8.
183. Id. para. 25.
184. 42 U.S.C. §§ 12101-12117 (2010); Geldreich v. Whisper Corwood LP, 2009

BCHRT 178 (Can. B.C.).
185. Rio Tinto Alcan Primary Metal v. C.A.W.-Canada, Local 2301 (2008), 180 L.A.C.

4th I (Can. B.C.).
186. 42 U.S.C. §§ 12101-12117.
187. Washburn v. Columbia Forest Products, Inc., 340 Or. 469 (2006);

Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008); N. Am. Constr.,
2003 ABQB 755 (Can.).

188. See infra note 23 and accompanying text.
189. See infra Part III.A.

2011] 377



IND. INT'L & COMP. L. REV.

workplace. 19 Requiring employers to accommodate an employee's use of
medical marijuana complicates the drug-free workplace goal of an
employer and compromises an employer's federal benefits.

A. Drug-Free Workplaces: Public Policy

There is a range of public policy reasons behind supporting drug-free
workplaces, including the loss of government funding for projects, the
correlation between a worker's impairment and absence and efficiency
rates, employer liability due to acts of an impaired worker, and fiscal
consequences suffered by the employer, employer's shareholders,
employees, and customers.191 Employers adopt drug-free workplace
policies to "improve work safety, to ensure quality production for
customers, and to enhance [their] reputation in the community by showing
that [they have] taken a visible stand against chemical abuse and the
associated detrimental effects."192

Employers contracting with the federal government endanger profits
and future contract opportunities if they fail to maintain workplaces that are
not drug-free.19 3 Federal law requires employers to notify employees that
the use of controlled substances, which includes marijuana, is prohibited.194

The federal government can terminate a particular grant and even impose
five years of ineligibility from receiving future grants if an employer does
not maintain a drug-free workplace.195

Employers not only stand to lose lucrative relationships at the federal
level but also with states that invoke laws that criminalize the use of
medical marijuana.196 For example, California requires all employers who
receive state funding, regardless of the dollar amount of the contract or
grant, to comply with California's Drug-Free Workplace Act of 1990.' 9 In
exchange for the continuation of state grants, the Act requires an employer
to: i) provide annual certification that controlled substances, including
marijuana, are prohibited; ii) implement drug-free awareness programs that
educate employees on the dangers of using drugs, educate employees on the
consequences associated with drug use, and provide employees with access
to drug counseling; and iii) make an employee's compliance with the

190. Id.
191. Deborah J. La Fetra, Medical Marjuana and the Limits of the Compassionate Use

Act: Ross v. Raging Wire Telecommunications, 12 CHAP. L. REv. 71, 73-74 (2008).
192. Id. at 74 (quoting Dolan v. Svitak, 527 N.W.2d 621, 626 (Neb. 1995)).
193. Id
194. Id.
195. Id.
196. Id.
197. Id.

[Vol. 21:2378



HIGH STAKES

program a condition of employment. The importance of such programs
is reiterated through the associated penalties, which include delay of
payment, contract or grant termination a combination of both delay and
termination, or ultimately debarment. 19 These federal and state laws are
not simply lip service; an employer's falsification of compliance can end in
suspension or termination of the contract or grant and an employer's
ultimate disbarment in the grant program.200

An employer's concern with maintaining a drug-free workplace goes
beyond compliance with federal and state laws to encompass fears of the
effect that marijuana has on an employee's performance.2 0

[Safety hazards are a reason to] be concerned from an
occupational hazard standpoint . . .. [The employee using
medical marijuana] could drop or mishandle or lose control
of [merchandise or equipment] because of their impaired
mind-altered judgment. The job would really need to
require no judgment of any kind. No coordination, no
technical judgment or no thinking skills in order to argue
[medical marijuana] would be safe in the workplace.202

Studies show an invasive range of effects marijuana has on a person,
even when used as medication, which support "[e]mployer fears of
employee absenteeism, shiftlessness, or malfeasance while under the
influence of marijuana. 203

While not discounting the potential benefits to patients and
recommending further study, American Medical
Association studies state that marijuana ingested for
medicinal purposes may have the same biological side-
effects as marijuana ingested for recreational purposes.
Marijuana increases the heart rate, and a person's blood
pressure may decrease on standing. Marijuana intoxication
can cause impairment of short-term memory, attention,
motor skills, reaction time, and the organization and
integration of complex information. Users may experience
intensified senses, increased talkativeness, altered

198. Id.
199. Id.
200. Id. at 74-75.
201. Id. at 75. See also Tahman Bradley, Walmart Fires Cancer Patient with

Prescription for Medical Marijuana, ABC NEWS (Mar. 17, 2010), http://abcnews.go.com/
Business/michgan-man-fired-walmart-medical-marijuana/storyid=10122193.

202. Bradley, supra note 201.
203. Fetra, supra note 191, at 75.

2011] 379



IND. INT'L & COMP. L. REv.

perceptions, and time distortion followed by drowsiness
and lethargy. Heavy users may experience apathy, lowered
motivation, and impaired cognitive performance. 04

Whatever effects are experienced because of marijuana use, they
become magnified in the work environment.205 The use of marijuana has
been linked with "increased absences, tardiness, accidents, workers'
compensation claims, and job turnover."206 In the context of employee
absenteeism, as a result of increased respiratory illnesses, "[p]eople who
smoke marijuana frequently, but do not smoke[] tobacco, have more health
problems and miss more days of work than nonsmokers." 207 While at the
job, the work performance and skills of an employee who uses marijuana
become diminished.208 Illustrating this point, "[a] study among postal
workers found that employees who tested positive for marijuana on a pre-
employment urine drug test had 55% more industrial accidents, 85% more
injuries, and a 75% increase in absenteeism compared with those who
tested negative for marijuana use."209

Additionally, the United States Department of Health and Human
Services conducted a study comparing employees who had used marijuana
within the past month and employees who had not.210 The study found that
employees using marijuana were 7.9% more likely to have worked for three
or more employers in the past year, 4.9% more likely to have missed two or
more days in the past month due to illness or injury, and 8.6% more likely
to have skipped one or more days of work over the past month.211 This
study highlights the concerns regarding the duration of employment and
attendance for employees who are currently using marijuana.

Although many state medical marijuana laws expressly prohibit
requirements that employers accommodate an employee's use of marijuana
at work, some argue that an employer's duty to accommodate should extend
to an employee's off-the-clock use.213 However, the effects of marijuana

204. Id. at 75 (quoting About AMA: Report I of the Council on Scientific Affairs (A-01)
(2001), AM. MED. Assoc., http://www.ama-assn.org/ama/no-index/about-ama/13652.shtml

(last visited Apr. 10, 2011) (citing PIERRI J. CHAIT, EFFECTS OF SMOKED MARIJUANA ON
HUMAN PERFORMANCE: A CRITICAL REVIEW, in MARIJUANA/CANNABINOIDS: NEUROBIOLOGY

AND NEUROPHYSIOLOGY 387-424 (A. Bartke & L. Murphy eds., CRC Press 1992))).
205. Id.
206. Id. at 76.
207. Id. at 75.
208. Id. at 75-76.
209. Id. at 76.
210. Id.
211. Id.
212. Id.
213. Id. at 76-77.

[Vol. 21:2380



HIGH STAKES

do not magically wear off once an employee clocks in.214 Marijuana has
short-term and long-term effects.215 Prolonged exposure can result in
respiratory illnesses, decreased cogitive ability, and up to six months of
memory defects after the last usage.

Another legitimate concern involves the extent of unknown liability
employers face because of the actions of employees under the influence of
marijuana.217 Employers are rarely held liable for an employee under the
influence of alcohol or drugs when driving, operating heavy machinery, or
engaging in other safety-sensitive tasks. However, courts have expanded
the scope of employment, holding employers liable in order to compensate
victims for wrongful acts of employees that are "bizarre and unforeseeable
acts, or brutal, violent, and sexual crimes." 219 "Forcing the employers to
retain current drug users would close off one of the few methods that
modern employers have left to insulate themselves from unlimited
liability."220 Employment decisions are business decisions. Thus,
employers must retain the ability to make the decision that will foster and
promote the overall health of their businesses.221

Driven by employer confusion and concern over what medical
marijuana laws require employers to do when an employee uses medical
marijuana, two identical bills were introduced in the Oregon House of
Representatives in 2009.222 House Bills 2497 and 3052 sought to "clarify
that employers are not required to accommodate medical marijuana in the
workplace, regardless of where the use occurs." 223 Oregon business and
industry was represented at the House Business and Labor Committee

214. Id. at 77.
215. Id. at 77-78.
216. Id.
217. Id. at 79.
218. Id.
219. Id.
220. Id. at 79-80 (quoting Laura L. Hirschfeld, Legal Drugs? Not Without Legal

Reform: The Impact of Drug Legalization on Employers Under Current Theories of
Enterprise Liability, 7 CORNELL J.L. & PUB. POL'Y 757, 840 (1998)).
221. See id. at 79-80.
222. Associated Oregon Industries, Business Groups Testify on Key Maryuana-Employee

Bills, OR Bus. REP. (Mar. 25, 2009), http://oregonbusinessreport.com/2009/03/business-
groups-testify-on-key-marijuana-employee-bills/.

223. Associated Oregon Industries, supra note 222 (including testimony of Associated
Oregon Industries, Oregon's largest business lobby; employment law attorneys; Western
Partitions, a union contractor with up to one thousand employees; Oregon Self-Insurers
Association, representing one hundred and thirty employers; Silverton Hospital; staffing
companies such as The Stoller Group, which places over eighteen thousand employees with
temporary employment each year; American Society of Safety Engineers, representing eight
hundred occupational safety, health, and environmental professionals; and Serenity Lane, a
private, not-for-profit treatment center for alcoholism and drug abuse).

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IND. INT'L & COMP. L. REV.

hearings on the bills.224 Business representatives reiterated their concerns
regarding the requirement of employers to accommodate a Schedule I
controlled substance, the increasing number of Oregon citizens holding
licensure cards under the state's medical marijuana law, and the loss of
federal funding and jobs if employers cannot certify compliance with the

Drug-free Workplace Act.225
Specifically, a large union contractor addressed liability concerns

with regard to a recent accident involving a medical marijuana user who
used marijuana at lunch, returned to work and fell, resulting in a shattered
leg.26 The employer spent more than five years and fifty thousand dollars
accommodating the medical marijuana user, had trained the employee in
fall protection, and yet was still liable for the fall.227 Safety issues infiltrate
every workplace, and employers are craving clarity regarding their rights to
maintain drug-free work environments.22 8

Organizations providing medical care are also not immune from the
legal limbo. 229 The Oregon Self-Insurers Association testified to a recent
incident at a large health care facility in which a pharmacy technician who
used medical marijuana caused frequent mistakes with patient
medications.230 Oregon's Silverton Hospital prohibits "employees to work
while using drugs or alcohol, including prescriptive narcotic medication in
which the strength is known and the dosage specified."231 This policy
highlights the fear over the lack of medical marijuana dosage
recommendations and inconsistent strengths from plant to plant.232 Another
source of apprehension stemming from the unique qualities and effects of
marijuana is the potential abuse and dependency on the drug.233 In Oregon,
there are currently no conditions for medical marijuana users to receive
abuse and dependency evaluations. 234

B. Tools to Create and Maintain Drug-Free Workplaces

Demonstrating the importance of having drug-free workplaces, U.S.
employers have many tools to ensure an employee's compliance.235 These
tools to help implement and enforce drug-free workplaces include drug

224. Id.
225. Id.
226. Id.
227. Id.
228. Id.
229. Id.
230. Id.
231. Id.
232. Id.
233. Id.
234. Id
235. See infra Part III.B.

[Vol. 21:2382



HIGH STAKES

policies, employee drug testing, and other resources from occupational
safety and health administrations.236 Canada has a similar arsenal;
however, a major difference exists in that Canadian employers have a
limited ability to drug test employees.237

Similar to the structure of the ADA and state disability discrimination
laws, the Occupational Safety and Health Act (OSHA) is a federal act, and
each state enacts their own occupational safety and health laws.238 OSHA
was passed in 1970 with the purpose of assuring

safe and healthful working conditions for working men and
women; by authorizing enforcement of the [Act's]
standards . . .; by assisting and encouraging the States in
their efforts to assure safe and healthful working
conditions; by providing for research, information,
education, and training in . . . occupational safety and
health.239

The federal and state occupational safety and health laws support, and the
federal and state governments sometimes even impose, responsibilities on
employers to address substance abuse issues.240 The U.S. Department of
Labor (DOL), which implements OSHA, encourages, supports, and
provides employer resources to ensure drug-free workplaces.2 4  The DOL
takes the position that drug-free policies at work "improve workplace safe
and health in organizations of all sizes and in all industries.'
Additionally, "[t]hey also play an important role in fostering safer and dru
free families, schools and communities across the [United States].'
Specifically, the DOL encourages an employer's overall drug-free
workplace program to include a drug-free workplace policy, supervisor
training, employee education, employee assistance, and drug testing. 244An

236. See infra Part III.B.
237. See CHRC TESTING POLICY, supra note 149.
238. See 29 U.S.C. § 667 (2004).
239. Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 650-700 (2004),

available at http://www.osha.gov/pis/oshaweb/owadisp.showdocument?ptable=OSHACT
&pid=2743.

240. Office of the Assistant Secretary for Policy, Working Partners for an Alcohol- and
Drug-Free Workplace: Frequently Asked Questions, U.S. DEP'T OF LABOR,
http://www.dol.gov/asp/programs/drugs/workingpartners/faq.asp#ql (last visited
Apr. 10, 2011) [hereinafter Working Partners FAQs]. See Fetra, supra note 191.

241. Office of the Assistant Secretary for Policy, Working Partners for an Alcohol- and
Drug-Free Workplace: Drug-Free Workplace, U.S. DEP'T OF LABOR, http://www.dol.gov/
asp/programs/drugs/workingpartners/dfworkplace/dfwp.asp (last visited Apr. 10, 2011).

242. Id.
243. Id.
244. Id.

2011] 383



IND. INT'L & COMP. L. REv.

employer's drug-free policy should be specific to the needs of each
individual business and minimally address the purpose for the policy,
include a description of prohibited behaviors, and discuss consequences for
violation of the policy.24

246
The DOL does not regulate drug testing of employees. However,

the DOL does recognize the strong policy behind drug-free workplaces and
includes drug testing as a suggested element for an employer's drug-free
workplace program.247 With respect to workplace drug testing,
"[g]enerally, employers have a fair amount of latitude in handling drug
testing as they see fit . . . . However, there may be state laws that impact

how drug testing is implemented." 248 Some state laws go to the extreme of
requirinq employee drug testing in order for an employer to be awarded a
contract. Many U.S. employers utilize some form of drug testing in
association with drug-free workplace policies, with "84[%] of employers
[requiring] pre-employment drug screening, 73[% requiring] reasonable-
suspicion testing, 58[% re uiring] post-accident testing, and
39[% requiring] random testing."

The Canadian Centre for Occupational Health and Safety (CCOHS)
was developed in 1978 to be at the forefront for "work-related injury and
illness prevention initiatives and occupational health and safety
information." 251 One of the goals of CCOHS is to "provide[] Canadians
with unbiased, relevant information and advice that supports responsible
decision-making and promotes safe and healthy working environments." 252

As opposed to the extent that the DOL provides information and resources
to drug-free workplace programs as a whole, CCOHS mainly focuses on
substance-abuse programs in the workplace. As a similar rationale to
develop entirely drug-free workplaces, CCOHS recognizes that the impacts

245. Office of the Assistant Secretary for Policy, Working Partners for an Alcohol- and

Drug-Free Workplace: Drug-Free Workplace Policy, U.S. DEP'T OF LABOR,
http://www.dol.gov/asp/programs/drugs/workingpartners/dfworkplace/policy.asp (last
visited Apr. 10, 2011).

246. See Working Partners FAQs, supra note 240.
247. Id.
248. Id.
249. See OR. REV. STAT. ANN. § 279C.505(2) (West 2005) (requiring that "every public

improvement contract .. . contain a condition that the contractor shall demonstrate that an
employee drug testing program is in place").

250. Eve Tahmincioglu, Wal-Mart Worker Fired Over Medical Marituana, MSNBC
(Mar. 17, 2010, 2:44:13 PM EST), http://www.msnbc.msn.com/id/35913492/ns/business-
careers/ (discussing 2006 report from the Society for Human Resource Management).

251. CCOHS: About Forum, CAN. CENTRE FOR OCCUPATIONAL HEALTH AND SAFETY,
http://forum05.ccohs.ca/about.html (last visited Apr. 10, 2011).

252. Id.
253. OSH Answers: Health Promotion/WellnessiPsychosocial, CAN. CENTRE FOR

OCCUPATIONAL HEALTH AND SAFETY, http://www.ccohs.ca/oshanswers/psychosociall (last

visited Apr. 10, 2011).

[Vol. 21:2384



HIGH STAKES

of substance abuse include "premature death/fatal accidents,
injuries/accident rates, absenteeism/extra sick leave, and loss of
production."254 Components of a suggested substance abuse program
include: statement of the purpose and objectives of the program; definition
of substance abuse; statement of who is covered by the policy and/or
program; statement of the employee's rights to confidentiality; that
arrangements have been made for employee education; that arrangements
have been made for training employees, supervisors, and others in
identifying impaired [behavior] and substance abuse; provision for assisting
chronic substance abusers; outline of how to deal with impaired workers; if
necessary, statement of under what circumstances drug or alcohol testing
will be conducted, and; provision for disciplinary actions.255

The allowance of employee drug testing in Canada is built upon a
different legal structure than the hands-off approach of the United States,
which leaves these decisions mostly up to the employer.256 In Canada, drug
testing and an employer's decision based on those test results are governed
by the Canadian Human Rights Commission (CHRC) and are heavily tied
to discrimination laws.257 The CHRC recognizes that "[s]afety is important
to employees and employers," 258 but strives to strike a balance so that
"safety must be ensured in ways that do not discriminate against employees
on the basis of a prohibited ground of discrimination."259

Consistent with the Human Rights Act, which prohibits
"discrimination on the ground of real or perceived disability,
drug ... testing [is] prima facie discriminatory." 26 The reasoning is "that a
drug test cannot measure impairment at the time of the test, [and] requiring
an employee or applicant for employment to undergo a drug test as a
condition of employment may be considered a discriminatory practice on
the ground of disability or perceived disability."261 In the case of marijuana
use, the grounds for discrimination would be "the actual or perceived
possibility that an individual may develop a drug or alcohol dependency in
the future."262

Canadian law does make an exception to the general rule regarding
drug testing and that relies on there being a "bona fide occupational

254. OSH Answers: Substance Abuse in the Workplace, CAN. CENTRE FOR
OCCUPATIONAL HEALTH AND SAFETY, http://www.ccohs.ca/oshanswers/psychosociall

substance.html (last visited Apr. 10, 2011).
255. Id.
256. See CHRC TESTING POLICY, supra note 149, at 2-4.

257. See id.
258. Id. at 2.
259. Id.
260. Id. at 3.
261. Id.
262. Id. at 3-4.

2011] 385



IND. INT'L & COMP. L. REv.

requirement."263 Therefore,

[i]f testing is part of a broader program of medical
assessment, monitoring and support, employers can test for
drugs in any of the following situations: for "reasonable
cause," where an employee reports for work in an unfit
state and there is evidence of substance abuse; after a
significant incident or accident has occurred and there is
evidence that an employee's act or omission may have
contributed to the incident or accident; or following
treatment for drug abuse, or disclosure of a current drug
dependency or abuse.264

However, pre-employment drug testing, as a general rule, is
prohibited.265 A drug test is considered a medical examination and,
therefore, is "limited to determining an individual's ability to perform the
essential requirements of the job.' Under the Human Rights Act, a drug
test does not reasonably gage if a worker will be impaired while working
because a pre-employment drug test that has a positive result does not
"predict whether the individual will be impaired at any time while on the
job."267 Similarly, random drug testing does not help effectuate the goal
that workers are not impaired while working because "a positive drug test
[does not] measure present impairment and . . . only confirm[s] that a
person has been exposed to drugs at some point in the past."268

C. Accommodation ofDisabilities

Putting aside the benefits and policy rationales behind requiring an
employer to accommodate an employee's disability, employers must also
develop and implement the accommodation for medical marijuana use,
which in some cases may be very burdensome.269 An example of such a
burden would be the accommodation of medical marijuana use and the
complications it creates with the ADA and employer programs such as loss
of fundin g, OSHA compliance, drug testing, and drug-free workplace
policies.

263. Id. at 5.
264. Id.
265. Id. at 6-7.
266. Id. at 6.
267. Id
268. Id at 7.
269. See supra Part III.A.
270. Id.

386 [Vol. 21:2



HIGH STAKES

When an employee requires workplace accommodation, such
considerations should be ad hoc and specific to the employee's limitation
and needs. 271

[A reasonable accommodation under the ADA] may
include: making existing facilities used by employees
readily accessible to and usable by persons with
disabilities; and job restructuring, part-time or modified
work schedules, reassignment to a vacant position;
acquisition or modification of equipment or devices,
appropriate adjustment or modification of examinations,
training materials or policies, the provision of qualified
readers or interpreters, and other similar accommodations
for individuals with disabilities.2 7 2

The Job Accommodation Network (JAN), working through the U.S.
Department of Labor's Office of Disability Employment Policy, suggests
the following questions to guide the development of employee
accommodations:

1) What limitations is the employee . . . experiencing?
2) How do these limitations affect the employee and the
employee's job performance? 3) What specific job tasks
are problematic as a result of these limitations? 4) What
accommodations are available to reduce or eliminate these
problems? Are all possible resources being used to
determine possible accommodations? 5) Has the
employee . . . been consulted regarding possible
accommodations? 6) Once accommodations are in place,
would it be useful to meet with the employee . . . to
evaluate the effectiveness of the accommodations and to
determine whether additional accommodations are needed?
7) Do supervisory personnel and employees need training
regarding [the employee's disability] ?73

Under the Canadian Human Rights Act, an employer's "duty to
accommodate means the employer must implement whatever measures

271. Linda Carter Batiste, Accommodation and Compliance Series: Employees With
Drug Addiction, JOB ACCOMMODATION NETWORK (Sept. 5, 2008), http://www.jan.wvu.edu/

media/drugadd.html#Acc.
272. 42 U.S.C. § 12111 (2010).
273. Batiste, supra note 271.

2011] 387



IND. INT'L & COMP. L. REv.

necessary to allow its employees to work to the best of their ability."274

Measures of accommodation include "eliminating or changing rules,
policies, practices and [behaviors] that discriminate against
persons .. . [with disabilities]."275 When an employer develops an
individualized accommodation for an employee, considerations include a
"determin[ation of] what barriers might affect the person requesting
accommodation; explor[ation of] options for removing those barriers; and
accommodat[ion] to the point of undue hardship.'2 76 As with the ADA,
Canadian discrimination laws require an employer to accommodate a
disability up to undue hardship.277 An employer's duty to accommodate is
excepted when:

a rule, standard or practice is based on a bona fide
occupational requirement . . . [which] means that an
employer or service provider can only deny
accommodation if it does something in good faith for a
purpose connected to the job or service being offered, and
where changing that practice to accommodate someone
would cause undue hardship to the employer or service
provider, considering health, safety and cost.

With respect to health and safety, if an accommodation "would pose
an undue risk to the health and safety of that person, or others, then an
employer or service provider may be able to establish undue hardship.,279
In examining cost, undue hardship is not met just because "some cost,
financial or otherwise, will be incurred ... .,,280 To reach undue hardship,
the cost has to be "so high that it affects the very survival of the
organization or business, or it threatens to change its essential nature'281
and can be measured through such factors as "the size and financial
resources of the employer, and external financing, and details of any
additional risks or detriments."28 2 Additionally, other factors to determine
undue hardship include "the type of work performed, the size of the

274. Duty to Accommodate Fact Sheet, CAN. HUMAN RIGHTS COMMISSION,
http://www.chrc-ccdp.ca/preventingdiscrimination/dutyobligation-en.asp (last updated
Oct. 06, 2010).

275. Overview of the Duty to Accommodate, CAN. HUMAN RIGHTS COMMISSION,
http://www.chrc-ccdp.ca/preventingdiscrimination/pagel-en.asp (last updated Aug. 23,
2004).

276. Id.
277. CHRC TESTING POLICY, supra note 149, at 7-11.
278. Duty to Accommodate Fact Sheet, supra note 274.
279. Id.
280. Id.
281. Id.
282. Id.

388 [Vol. 21:2



HIGH STAKES

workforce, the interchangeability of job duties, financial ability to
accommodate, the impact on a collective agreement, and impact on
employee morale." 283

There are examples in Canada of emplo ers providing an area at work
for medical marijuana users to use the drug. 84 Although the dispute did
not reach the level of a court order, two college professors used Canada's
human rights laws to petition their employers, the University of Toronto

285
and York University to accommodate their medical marijuana use. Even
though it was a long battle for Professor Doug Hutchinson and Professor
Brian MacLean, one year and three months respectively, their employers
eventually conceded. Each professor qualifies to use medical marijuana
under Canadian law.287 Now, each professor is provided a room in which

they are allowed to smoke in while on the job.288 York University
Professor Maclean argued that "[w]ithout the medication, [he was] disabled
and .. . not able to carry out meaningful and valuable, productive work. 2 89

University of Toronto Professor Hutchinson likened a lack of
accommodation to smoke at work with "kill[ing himself]-either literally or
professionally." 290 In making its decision to accommodate the professor by
providing him with a "smoking room," the University of Toronto hired a
consultant to help best make the decision.291

The United States is not replete with examples of businesses
accommodating the use of medical marijuana.292 Newbridge Securities, a
Florida firm, accommodates the medical marijuana use of one of its
brokers.293 Although Florida is not a medical marijuana state, the employee
smokes legally as part of a test program through the U.S. government. It
is possible that the employee could handle millions of dollars of his clients'
money while under the influence, but this risk is taken with the knowledge
of his clients and the support of his employer.295 While Newbridge

283. Preventing Discrimination, CAN. HUMAN RIGHTS CoMMIsSION, http://www.chrc-
ccdp.ca/preventingdiscrimination/page3-eng.aspx (last updated May 6, 2005).

284. See Natasha Elkington, Two Canada Professors Win Right to Toke Up at Work,
REUTERS (Nov. 15, 2006, 5:34 AM EST), http://www.reuters.com/article/oddly
EnoughNews/idUSNL431354020061115.

285. Elkington, supra note 284.
286. Id.
287. Id.
288. Id.
289. Id.
290. Intini, supra note 284.
291. Id.
292. See Stephanie Armour, Employers Grapple with Medical Mariuana Use, USA

TODAY (Apr. 18, 2007, 11:49 PM), http://www.usatoday.com/money/workplace/2007-04-
16-medical-marijuana-usatN.htm.

293. Id.
294. Id.
295. Id.

2011] 389



IND. INT'L & COMP. L. REv.

Securities accommodates the use of medical marijuana on the job, another
option for employers would be to utilize flexible work schedules to
accommodate medical marijuana use so as to decrease the likeliness of an
employee being under the influence while on the clock.296

Many employers in the United States do not reach the stage of
weighing the options for accommodation because employees are terminated
if they test positive for marijuana.297 As its predecessor states have
experienced, what protections an employee or e ployer has under
Michigan's medical marijuana laws are under fire. Joseph Casias
worked for Walmart for five years before being terminated for a positive
post-accident drug test.299  Casias uses medical marijuana legally under
Michigan law. oo Employers, including Walmart, are faced with diverging
state and federal employment laws, as well as the real-life consequences of
liability, such as negligence, if an employer is aware of an employee's
marijuana use and a customer is injured as a result of the employee's
error.301 Although medical marijuana supporters call Walmart's decision
"uncompassionate," Walmart feels it is "unfortunate." 302  Walmart is
"sympathetic to Mr. Casias' condition. [However, as an employer,
Walmart has] to consider the overall safety of [its] customers and
associates, including [the patient], when making a difficult decision like
this." 303

Many businesses are not accommodating employee medical
marijuana use, and U.S. courts are increasingly backing this stance.304

Casias has not decided if he will go to court to contest his termination, but
he has contacted the Michigan Department of Civil Rights, which will
investigate the matter to determine if Walmart violated any disability
discrimination laws. 305  What happens in Michigan if this decision is
challenged may further divide how medical marijuana laws are
applied-this time across state lines.306 A direct conflict exists between

296. Id.
297. Id. See supra Part II.A. See also Tahmincioglu, supra note 250; Bradley, supra

note 201.
298. See Tahmincioglu, supra note 250. See also Bradley, supra note 201.
299. See Tahmincioglu, supra note 250.
300. Id.
301. Id.
302. Id.
303. Id.
304. Id.
305. Id.
306. See Bradley, supra note 201. See also Troy Reimink, Wal-Mart's Firing of

Employee for Using Medical Maryjuana Incites Boycott, MICHIGAN LIVE LLC
(Mar. 17, 2010, 7:18 AM), http://www.mlive.com/news/index.ssf/2010/03/wal-mart-fires
battle_ creek em.html (discussing further consequences such as the call by marijuana

390 [Vol. 21:2



HIGH STAKES

Michigan's medical marijuana law, which provides protection against
"disciplinary action by a business for medical marijuana use" and the
Michi an employer's legal right to terminate employees after failing a drug
test.30 Michigan attorney Michael Komorn believes society places a
stigma on marijuana use that adversely affects even those who use it legally
for medical purposes, and that "[i]n order to protect patients there has to be
an evolution in thinking." 308

IV. RECOMMENDATION

Current laws should be amended and new laws drafted to clarify that
employers do not have to accommodate medical marijuana in the
workplace. As it stands, employers within the United States do not know
what to do regarding medical marijuana.309 They are in legal purgatory
between federal and state law. 310 Employers are unsure to what extent
medical marijuana affects, or does not affect, their decisions regarding
hiring, firing, liability and accommodation. 3 Oregon employment lawyer
Richard Meneghello succinctly describes the current reality of the employer
stating, "[i]t's almost an untenable situation. Employers are screaming for
answers. We know they [are] looking for clear answers, and there [is] not
one out there right now. There [is] a lot of uncertainty. Employers are
living in a dangerous situation." With the number of states legalizing
medical marijuana increasing and other states with pending medical
marijuana legislation, companies all over the country, whether in a medical
marijuana state or not, are debating the employer's situation.313 The effects
of marijuana use including absenteeism, malfeasance, and turn over 314may
not be demonstrated by every medical marijuana user, but regardless, a
stigma regarding marijuana use, medical or not, exists.3 15

The uncertainty of medical marijuana law may also be multiplied if
states have differing laws regarding medical marijuana and employers.
This issue is particularly prudent in areas where people live in one state but
work in another. Theoretically, a similar problem may arise when an
individual's place of residence and work location are separated by the U.S.-
Canadian border. However, due to the legal structure upon which each
country's substantive laws are based, it makes more sense to reconcile

advocates to boycott Walmart and the holding of a rally in support of the terminated
employee).

307. See Reimink, supra note 306.
308. Id.
309. See supra Part III.
310. Id.
311. Armour, supra note 292.
312. Id.
313. Id.
314. Fetra, supra note 191, at 75.
315. See Armour, supra note 292.

2011] 391



IND. INT'L & COMP. L. REv.

diverging U.S. law than to blindly follow Canada's lead.
Times are changing: states are permitting medical marijuana; several

states have pending medical marijuana legislation including traditionally
conservative states; states are pushing further to legalize the recreational use
of marijuana; and federal law, which prohibits any use of marijuana, has
subsided in actively enforcing federal law against patients complying with
state law.316 Although Canada's policy reflects the opposite stance of this
Note, the uncertain effect medical marijuana has in the employment arena is
uniform throughout the entire country. This situation requires current
action from the federal and state governments of the United States to create
a uniform application of the laws.

A. States Should Protect Employers'Rights

States should protect an employer's right to enforce a drug-free
workplace through a variety of measures, such as cautiously drafting
medical marijuana acts, passing bills to amend existing acts to clarify that
employers have no duty to accommodate medical marijuana use, and
ensuring that courts continue interpreting medical marijuana laws with an
eye toward decriminalization. 318  When drafting medical marijuana
legislation, the purpose of the law should be clearly stated and the law
should be given proper scope and limitations.319 Additionally, states with
pending medical marijuana legislation should review the language of
existing acts and the past and current lawsuits regarding the acts when
drafting new legislation.

The purpose of the California Compassionate Use Act is to exempt
patients requiring medical marijuana treatment from "criminal prosecution
or sanction." 320 The Oregon Medical Marijuana Act has a similar purpose
to exempt such users from state criminal laws for possession.321 However,
additional provisions of Oregon's law specifically refer to the requirements
of employers.322 With regard to the application of the law to the workplace,
the original language in the Oregon Medical Marijuana Act, ORS 475.300
to 475.346, reads "[n]othing in ORS 475.300 to 475.346 shall be construed
to require: . . . (2) An employer to accommodate the medical use of

316. See William M. Welchand & Donna Leinwand, Slowly, States Are Lessening Limits
on Marijuana, USA TODAY (Mar. 9, 2010, 11:25 AM), http://www.usatoday.com/
news/nation/2010-03-08-marijuana N.htm.

317. See supra Parts I.B-C., II.
318. See infra Part IV.A.
319. See generally CAL. HEALTH & SAFETY CODE ANN. § 11362.5 (West 1996); OR. REV.

STAT. ANN. §§ 475.300, 475.346 (West 1999); MICH. COMP. LAWS ANN. §§ 333.26424-
333.26428 (West 2008).

320. CAL. HEALTH & SAFETY CODE ANN. § 11362.5.
321. OR. REv. STAT. ANN. §§ 475.300-475.346.
322. Id.

392 [Vol. 21:2



HIGH STAKES

marijuana in any workplace." 323 This provision is ambiguous in that it may
only exempt an employer from accommodating the actual ingestion of
marijuana in the workplace. Oregon State Representatives Bruce Hanna
and Mike Schaufler introduced and sponsored identical bills in 2009 to
remedy this ambiguity.324 Bills such as House Bill 2497 and
House Bill 3052 sought to clarify the requirements of employers regarding
accommodation of medical marijuana. The proposed bills would have
amended Section 475.340 of the Act to read:

Nothing in ORS 475.300 to 475.346 shall be construed
to: ... (2) Require an employer to: (a) Accommodate the
medical use of marijuana in any workplace regardless of
where the use occurs; (b) Allow an employee or
independent contractor to possess, to consume or to be
impaired by the use of marijuana during working hours; or
(c) Allow any person who is impaired by the use of
marijuana to remain in the workplace. (3) Preclude or
restrict an employer from establishing or enforcing a policy
to achieve or maintain a drug-free workforce. 326

As gaps and ambiguities are found in current state medical marijuana laws,
legislatures should take steps to amend their statutes in order to ameliorate
the problems. 327

In contrast, the purpose of the Michigan Medical Marihuana Act is to
protect marijuana users from criminal penalty but also prevent them from
being "denied any right or privilege, including . .. disciplinary action by a
business."328 This may appear to be a clearly stated purpose, but the statute
also provides that employers are not required to accommodate medical
marijuana use.329 Under Michigan's law, employers are not required to
accommodate the use of "marihuana in any workplace or any employee
working while under the influence of marihuana." 33  This potential conflict
is exemplified by Walmart's recent firing of Joseph Casias. 3 3  While an

323. Id.
324. H.B. 3052, 75th Gen. Assemb., Reg. Sess. (Or. 2009); H.B. 2497, 75th Gen.

Assemb., Reg. Sess. (Or. 2009).
325. Associated Oregon Industries, supra note 222.
326. H.B. 3052, 75th Gen. Assemb., Reg. Sess. (Or. 2009); H.B. 2497, 75th Gen.

Assemb., Reg. Sess. (Or. 2009).
327. See generally CAL. HEALTH & SAFETY CODE ANN. § 11362.5 (West 1996); OR. REV.

STAT. ANN. §§ 475.300-475.346 (West 1999); MICH. COMP. LAWS ANN. §§ 333.26424-
333.26428 (West 2008).

328. MICH. CoMP. LAWS ANN. §§ 333.26424-333.26428 (West 2008).
329. Id.
330. Id.
331. See supra text accompanying notes 297-308.

2011] 393



IND. INT'L & COMP. L. REv.

employee may argue that medical marijuana was not used at the job, effects
of marijuana use may linger both in the short- and long-term, resulting in
the employee being under the influence while on the job. 32

As states with pending legislation work toward final statutory
language, they should adopt a clear purpose, like California and Oregon,
which provide a compassionate solution for patients who were once forced
to choose between medication and committing a criminal act. 333  The
purpose should not further compromise the health and safety of the patient
or others by allowing marijuana, in any form, to waft into the workplace. 334

State courts should continue to side with employers on these tough
decisions.335 As the courts in California and Oregon have done, medical
marijuana legislation should be interpreted consistently with their purpose,
which is to decriminalize medical marijuana use.336 Courts have remained
mindful of the federal classification of marijuana as a Schedule I drug.337

State laws decriminalizing medical marijuana have been upheld; however,
courts have been less willing to allow medical marijuana laws to preempt
federal disability laws, which are structured around the federal illegality of
marijuana.338

It is one thing for state employment laws to differ by providing a
greater degree of protection than federal law, but passing and upholding
laws that are in direct conflict with federal law is another. The business
setting minimizes the definition of state lines and the division of country
and state. 34 Profit from federal projects and losses from potential disability
discrimination violations and civil suits are too high of stakes for the federal
government to remain silent.34 1 The federal government has eased state
fears of passing medical marijuana laws by taking a back seat to
enforcement.342 Although the federal government is acquiescing to some
degree, federal law clearly illegalizes any use of marijuana. 343 Adding fuel

332. See supra Part III.A.
333. See generally supra Part I.B.
334. See supra Part III.
335. See Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 202 (Cal. 2008);

Washburn v. Columbia Forest Products, Inc., 340 Or. 469, 478-80 (2006); Tahmincioglu,
supra note 250.

336. See Ross, 174 P.3d at 202; Washburn, 340 Or. at 478-80.
337. Ross, 174 P.3d at 202; Washburn, 340 Or. at 478-80.
338. See Washburn, 340 Or. at 481.
339. See id.; INTERNATIONAL LABOR AND EMPLOYMENT LAw, supra note 27, at 247-48.
340. See generally Fetra, supra note 191, at 74.
341. See supra Part III.
342. Feds: No More Arrests for Pot Smoking Patients, supra note 41.
343. Id.

[Vol. 21:2394



HIGH STAKES

to the fire, laws from state to state diverge on these important issues.344
The time is now for the United States, at both federal and state levels, to
enact uniform laws regarding the impact that medical marijuana may have
in the employment sector.

Canada requires employers to accommodate the use of medical
marijuana and recognizes a current addiction to and use of a drug such as
marijuana as a disability that must be accommodated. 345 Although United
States law currently does not recognize an addiction to a drug accompanied
by current use as a disability and should not require employers to
accommodate the use of medical marijuana, the two countries' differing
legal positions can be harmonized.346 As a matter of constitutionality,
medical marijuana is legal in Canada.347 The United States is nowhere near
that position; the U.S. Supreme Court has upheld the current classification
of marijuana as a Schedule I drug and has permitted raids that enforce
federal drug laws in medical marijuana states. 48 Conversely, in Canada,
the use of drug testing is a privacy issue and may be discrimination in and
of itself; however, while not regulated by the U.S. government, drug testing
is encouraged by both federal and state governments to ensure safe and
healthy workplaces. 349 Medical marijuana and drug-free workplace polices
are on different legal footings in Canada and the United States. Although
the outcomes differ, each country's laws consistently reflect the legal
evolution that has played out in each country. Therefore, the United States
should not wildly abandon all precedent that has supported decades of
marijuana laws. Instead, the United States should seek to find its own
balance in order to protect and support a bedrock of U.S. society-its
employers.

CONCLUSION

Medical marijuana legislation is a compassionate solution to keep
suffering patients from becoming criminals. However, states should
enforce these laws with the intent to decriminalize medical marijuana
without infringing upon an employer's duty to maintain healthy and safe

344. Compare CAL. HEALTH & SAFETY CODE ANN. § 11362.5 (West 1996), and OR. REV.
STAT. ANN. §§ 475.300-475.346 (West 1999), with MICH. CoMP. LAWS ANN. §§ 333.26424-
333.26428 (West 2008).

345. See supra Parts I.C, II.B.
346. Facts About the Americans with Disabilities Act, supra note 4.
347. See R. v. Parker, (2000) 49 O.R. 3d 481 (Can. Ont. C.A.).
348. See Gonzales v. Raich, 545 U.S. 1, 2 (2005).
349. See Working Partners FAQs, supra note 240; CHRC TESTING POLICY, supra note

149, at 2-4.
350. See Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200, 202 (Cal. 2008);

Washburn v. Columbia Forest Products, Inc., 340 Or. 469, 478-80 (2006).

2011] 395



IND. INT'L & COMP. L. REV.

workplaces.351 States with pending legislation should review the language
of current medical marijuana acts and carefully draft provisions regarding
the act's purpose, limitation, and scope.352 Additionally, legislatures should
review past and current case law, taking lessons from gaps or ambiguities in
other state acts.353

States with current medical marijuana laws should take steps to
amend their laws to clarify that employers are not required to accommodate
an employee's use or influence of medical marijuana regardless of where
such use occurs.354 Courts interpreting state medical marijuana laws should
do so with the spirit of the intention of the laws-decriminalization. 355

Differences from state to state regarding the effect medical marijuana laws
have on employers and the legalization of medical marijuana will continue
to pose conflicts as long as federal laws are contradictory to state laws. 356

U.S. laws should not be patterned after Canadian laws simply because
Canada is our neighbor. Each country's views of employer accommodation
and disability discrimination laws rest on different foundations.35 7 Instead,
the United States, including states with medical marijuana laws, should
remain consistent with the current understanding of disability under the
Americans with Disabilities Act.3 58 State medical marijuana acts do "not
stand as a statutory trump card over every other statute and common law
duty. Employers have a duty to their employees, customers and the general
public, to provide a safe and drug-free workplace." 59 Therefore,
employers should not be required to accommodate the use of medical
marijuana by employees.

351. See supra Parts III, IV.
352. See supra Part IV.
353. Id.
354. Id.
355. Id.
356. Id.
357. Id.
358. Id.
359. Brief for Pacific Legal Foundation and National Federation of Independent Business

as Amici Curiae Supporting Petitioner, Emerald Steel Fabricators, Inc. v. Bureau of Labor
and Industries of the State of Oregon, 230 P.3d 518 (Or. 2010) (No. Al30422).

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