Sean Foss: Legalizing Recreational Marijuana Creates Conundrum for Employers

In an undated photo, a urine test sample container. (Johnny Tergo/The New York Times/Copyright 2018/New York Times)

This guest post was submitted by Fargo attorney Sean Foss.

As North Dakota voters consider whether to approve Measure 3, which would generally legalize recreational marijuana use for those aged 21 and up, employers in the State face a particularly-difficult conundrum: if the measure passes, it will become illegal for most employers to discriminate against habitual marijuana users.

North Dakota law provides “[i]t is a discriminatory practice for an employer to fail or refuse to hire an individual; to discharge an employee; or to accord adverse or unequal treatment to an individual or employee” because of “participation in lawful activity off the employer’s premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.” N.D.C.C. § 14-02.4-03(1).

The North Dakota Supreme Court has explained the Legislature passed this prohibition against so-called lawful activity discrimination “to expand the law prohibiting employment discrimination and preclude employers from inquiring into an employee’s non-work conduct, including an employee’s weight and smoking, marital, or sexual habits.” Hougum v. Valley Memorial Homes, 1998 ND 24, ¶ 40, 574 N.W.2d 812.

North Dakota law provides “[i]t is a discriminatory practice for an employer to fail or refuse to hire an individual; to discharge an employee; or to accord adverse or unequal treatment to an individual or employee” because of “participation in lawful activity off the employer’s premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.”

In fact, tobacco lobbyists pushed the bill to prohibit lawful-activity discrimination through the Legislature. As Phillip Morris lobbyist John Olson testified in 1991: “This legislation is important to protect the rights of all law-abiding citizens without prejudice to their lifestyles or believes [sic], including those who choose to smoke in the privacy of their homes, without retribution or fear that their jobs are in jeopardy.” Testimony of John Olson on S.B. 2498 before the Senate Comm. on Business, Labor and Industry, 52nd N.D. Legis. Sess. (Feb. 4, 1991). Of course, at the time the law was passed, the concern was about protecting employees who smoked tobacco, not marijuana. But, if Measure 3 passes and recreational marijuana becomes legal, N.D.C.C. § 14-02.4-03(1) will protect marijuana users from lawful-activity discrimination as well.

The organizers of North Dakotans Against the Legalization of Recreational Marijuana have cited two primary reasons to vote against Measure 3: (1) the Measure will legalize driving while impaired by marijuana; and (2) it will allow people to consume marijuana in public. If the opponent’s objections are accurate, then it would also become illegal for an employer to discriminate against an employee who legally drives while under the influence of marijuana or who uses marijuana in public during non-work hours off the employer’s premises.  

The only escape clause for employers seeking to avoid employment of habitual marijuana users is that the law does allow employers to discriminate if the lawful marijuana use is “in direct conflict with the essential business-related interests of the employer.” However, unless your business relates to education about the adverse health effects of marijuana or provides treatment for marijuana addiction, it is hard to imagine circumstances in which a person lawfully using marijuana would be in direct conflict with an employer’s essential business-related interests.

To be clear, N.D.C.C. § 14-02.4-03(1) would not prohibit employers from discriminating (i.e. hiring, firing, demoting, etc.) employees who use marijuana at work or who show up to work impaired by marijuana. But it would prohibit employers from discriminating against employees who legally use marijuana at home or elsewhere, and it would make it very difficult for employers to determine whether an employee is coming to work impaired by marijuana. Simply giving an employee a drug test will not be sufficient, because the current tests do not necessarily establish when the employee used marijuana and whether the employee is currently impaired. THC, the active ingredient in marijuana, can stay in an individual’s system for up to 60 days or more after use.

Broadly speaking, Measure 3 seeks to move from one extreme – complete criminalization of recreational marijuana use – to another – full integration of recreational marijuana into society. This seismic shift may affect employers more than anyone else. Thanks to North Dakota’s ban on lawful activity discrimination under N.D.C.C. § 14-02.4-03(1), passage of Measure 3 may require businesses to employ habitual marijuana users despite personal objections to marijuana and concerns about how marijuana use will impact their employee’s job performance.

Rob Port is the editor of SayAnythingBlog.com and a columnist for the Forum News Service.

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