By: Susan L. Swatski, Esq. (sswatski@hillwallack.com) and Bryan A. Coe, Summer Associate (bcoe@hillwallack.com)

The legal landscape surrounding marijuana laws has drastically changed over the last decade. Currently, 23 states, including New Jersey and New York, allow the use of medical marijuana despite the federal government’s classification of marijuana as a schedule 1 illegal drug. Pennsylvania currently has legislation pending to legalize the use of medical marijuana. The conflict between state and federal law leaves employers in states that protect against retaliation for an employee’s lawful activities guessing whether they can test for, and prohibit, the use of medical marijuana. A recent Colorado Supreme Court unanimous decision may help to alleviate some of this guesswork.

In Coats v. Dish Network, the court considered whether medical marijuana use was a “lawful activity” under Colorado’s Lawful Activities statute. This statute made it illegal for an employer to terminate an employee for engaging in a lawful activity, off the premises, during non-working hours. The plaintiff in the case, is a registered medical marijuana patient, who brought suit against his former employer for wrongful termination after he was fired for using medical marijuana outside of work hours. In determining the meaning of a “lawful activity”, the court rejected the argument that the Colorado State Assembly intended “lawful” to mean lawful under Colorado law. The court found that a “lawful activity” is an activity which complies with state and federal law. As a result, the court found that because the plaintiff’s medical marijuana use was illegal under federal law, the use was not protected by Colorado’s Lawful Activities statute.

New Jersey’s medical marijuana law has a provision where employers are not required to “accommodate the medical use of marijuana in any workplace.” New York’s medical marijuana law classifies patients as “disabled” making it illegal for employers to discriminate against medical marijuana users. New York’s law precludes an employer from taking disciplinary action against certified medical marijuana users for failing a drug test. Further, employers may need to make a reasonable accommodation for an employee who uses medical marijuana, although this second point is still contentious and unsettled. Pennsylvania’s pending legislation is similar to New York’s in that an employer could not consider a positive drug test for marijuana when making an employment decision unless that employee was impaired by or possessed marijuana while on the employers premises or during working hours.

The Dish Network decision follows decisions from courts in California, Oregon, and Washington – each of these states permit the use of medical marijuana – that employers can fire an employee for medical marijuana use. The legal landscape surrounding the medical use of marijuana remains dynamic, particularly as support grows for the federal government lightening its stance on medical marijuana’s drug classification. All businesses that have drug testing policies should be aware of this changing legal landscape.

Employers should seek legal counsel to accurately assess their drug testing policies to confirm compliance with all applicable laws. If you feel this is an area of concern for your business, seek legal counsel from one of our skilled employment law attorneys. We are ready to help.

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com)

On September 30, 2014, the Colorado Supreme Court is set to hear argument in Coats v. Dish Network, L.L.C., about an employee’s right to use medical marijuana during non-work hours, and the employer’s right to test for the drug and discipline users. At issue is the right of an employee to use medically prescribed marijuana to help with painful spasms when he/she is not at work. Dish Network contends that it should not have to retain employees whose marijuana use violates federal law and whose performance as a result of their marijuana use could be an issue.

By: Deniz S. Uzel, Summer Associate (duzel@hillwallack.com and Susan L. Swatski, Esq. (sswatski@hillwallack.com

On June 14, 2013, the Fourth Circuit Court struck down the National Labor Relations Board’s rule that would have required six million private employers to hang posters about workers’ right to unionize or to face penalties for anti-union bias for refusing. The court noted that even the National Mobilization Against Sweatshops, a worker-advocacy group, admitted that very few workers learn about their rights through postings. The NLRB has rarely engaged in rulemaking in its seventy-seven years of existence, but the Fourth Circuit’s ruling makes clear that when it does, it may be acting outside of its legal authority. The Court explained that the part of the National Labor Relations Act that gives the Board power to issue rules, Section 6, does not allow the issuance of this type of rule because the NLRB is supposed to be a reactive agency. Accordingly, the court found that the posting rule is outside of the bounds of the law.

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com and
Deniz S. Uzel, Summer Associate (duzel@hillwallack.com

On June 10, 2013, the United States Supreme Court unanimously affirmed Oxford Health Plans v. Sutter, exhibiting a cautionary warning to employers and the particular terms they may want to include in the arbitration clauses of their employment agreements.

This case involved a situation where parties bargained for broad contractual language, stating specifically that any disputes were to be “submitted to final and binding arbitration.” The contract was silent concerning class arbitration. Sutter brought a class action claim against Oxford Health Plans. The parties agreed that the arbitrator would decide whether this broad contractual language would be inclusive of class arbitrations. The arbitrator ultimately found that since the language included the phrase “all such disputes,” class arbitrations were permitted.

By: Susan L. Swatski, Esq. (sswatski@hillwallack.com and
Deniz S. Uzel, Summer Associate (duzel@hillwallack.com

On June 10, 2013, the United States Supreme Court unanimously affirmed Oxford Health Plans v. Sutter, exhibiting a cautionary warning to employers and the particular terms they may want to include in the arbitration clauses of their employment agreements.

This case involved a situation where parties bargained for broad contractual language, stating specifically that any disputes were to be “submitted to final and binding arbitration.” The contract was silent concerning class arbitration. Sutter brought a class action claim against Oxford Health Plans. The parties agreed that the arbitrator would decide whether this broad contractual language would be inclusive of class arbitrations. The arbitrator ultimately found that since the language included the phrase “all such disputes,” class arbitrations were permitted.