It’s Officially More Than a Trend:

The continued advancement in the legalization of marijuana, medicinal and recreational by states and localities, show the need for employers that maintain any type of drug policy to stay on top of developments in the legal arena which may affect the administration of such policies. At the time of the writing of this blog, twenty-three (23) states have passed some form of comprehensive medical marijuana law and seventeen (17), including Wisconsin, have approved low THC products for limited medicinal use. I won’t even go into all the different local ordinances which are popping up all around the country.

Wisconsin Dips Its Toe In the Water:

In April of last year, Wisconsin, through 2013 Act 267, made an exception to the definition of prohibited THC and allows for certain physicians and pharmacies to dispense such medication to qualified patients for the treatment of seizures. It also allows qualified patients to receive this type of drug from out of state medical marijuana dispensaries and cross state lines into Wisconsin with it (so long as such out of state dispensary also allows access by out of state residents). Many Wisconsin employers still are not aware that Wisconsin has such limited purpose medical marijuana law.

In recent years, there have been many attempts to pass laws “relaxing” (excuse the pun) the use, sale and/or penalties associated with medical and recreational marijuana in Wisconsin. Currently, Assembly Bill 224 introduced this past May addresses both the allowance for recreational and medicinal use, among other things, of marijuana in the State of Wisconsin.

Intersection of Many Laws:

Employers in Wisconsin should already be looking to ensure its own actions and policies are reasonable and lawful in light of the allowance of limited medicinal use of marijuana. Given that this is more than a trend, Wisconsin employers should keep an “eye” on any expansion of such law and be able to adjust and administer policies quickly, as well as train individuals such as recruiters, human resource professionals and front line supervisors appropriately.

Many employers forget that the lawful use of medical marijuana as an employment issue cannot and does not exist in a vacuum as a law that needs to be addressed solely in terms of a drug policy. Having an employee, or even a candidate interviewing for a job, who is using medical marijuana in accordance with state law should prompt an employer to have additional discussions with managers, supervisors, and human resources about such things as reasonable accommodations, the implication of leave laws such as FMLA and Wisconsin’s state equivalent, and in general, avoiding discriminatory treatment.

One of the more interesting intersections of law concerning lawful use of medical marijuana occurs in states that have a statute protecting off duty lawful conduct or use of lawful products, as Wisconsin does. Wisconsin’s off duty use of lawful products protection is found at Wis. Stat. s. 111.321 and protects the use or nonuse of lawful products off the employer’s premises during nonworking hours. So if an employee tests positive for marijuana in violation of an employer’s drug policy, can an employer lawfully terminate that employee if the employee was using the marijuana in accordance with Wisconsin’s law and doing so off the employer’s premises during nonworking hours? Given the response by the Colorado Supreme Court in June, the answer would likely be: Yes, an employer can uphold discipline, including termination under a zero tolerance drug policy for any employee who tests positive for marijuana despite that employee using such marijuana in accordance with Wisconsin’s limited medical marijuana law, off duty and off employer premises.

Persuasive Guidance Given In June of this Year:

In June of this year, in a 6-0 decision (Coats v. Dish Network), the Colorado Supreme Court affirmed the lower courts' rulings that employers (in Colorado) do not violate the law when terminating an employee who uses medical marijuana, off duty, and then tests positive under the employer's "zero tolerance drug policy." With the lower courts' decisions upheld, Colorado became the first state to tackle this issue, and most certainly it will have an influence on future cases across the nation in this area, including Wisconsin.

The central legal principle in this case was whether the use of medical marijuana, off duty, by a medical marijuana card holder (all legal under Colorado state law) was a "lawful" activity under the "Lawful Off Duty Activities" statute of Colorado. If so, the former employee could not be fired simply because his use of medical marijuana violated the employer's "zero tolerance drug policy." Sounds simple right? It’s all legal under Colorado law and therefore the employee should be protected from being fired under the employer's "zero tolerance drug policy." But the Trial Court and Court of Appeals in Colorado sided with the employer.

How could the lower Courts side with the employer if this is all legal in the state of Colorado? Remember that the use of marijuana, for medicinal purposes or otherwise, remains illegal under federal law, specifically the Federal Controlled Substances Act. Therefore, the Colorado Supreme Court had to decide if the lower Courts correctly determined that the definition of "lawful" under Colorado's "Lawful Off Duty Activities" statute required "obedience" of all laws, including federal law, in order for this activity to be protected by state law.

The Colorado Supreme Court decided that:

• "Colorado's 'lawful activities statute,' the term 'lawful' refers only to those activities that are lawful under both state and federal law."

And the Court further noted that:

• "Nothing in the language of the statute limits the term 'lawful' to state law. Instead, the term is used in its general, unrestricted sense, indicating that a 'lawful' activity is that which complies with applicable 'law,' including state and federal law."

In a nut shell, the Colorado Supreme Court affirmed that the lower Courts correctly determined that the definition of "lawful" even under a state statute does indeed require that the activity be lawful at all levels, including the federal level. Employers in Colorado can now be assured that they may uphold their "zero tolerance drug policies" in the face of an employee failing a drug test due to even off duty use of medical marijuana.

What does this mean for Wisconsin Employers, Its Drug Policies and Wisconsin’s Protection of “Lawful Use of Products”?

Well of course there is no guarantee. But the persuasive argument that this Court brought forward regarding the term “lawful” is applicable, and therefore likely to be very persuasive under Wisconsin law. Wisconsin’s statute does not limit the term “lawful product” to those products lawful under state law only in order to trigger its protection. Therefore the same analysis could be used that the term “lawful” is to be interpreted very broadly and that in order for a product to receive protection under this state’s law, such product must remain lawful at all levels, state, federal and local. Given this analysis, it is likely that Wisconsin employers will be able to legitimately defend any state lawsuits brought under similar circumstances using this level of analysis.

About the Author

The author of this article is Lisa A. Baiocchi, a Partner with Pautsch, Spognardi & Baiocchi Legal Group LLP. Ms. Baiocchi has over 15 years’ experience in the business and human resource field as an Attorney, Consultant, and HR Practitioner. As an Attorney, she dedicates her practice to management side in human resources, employment, labor and business/contract law. Her complete biography can be found at www.psb-attorneys.com.