Pub.1 2019-2020 Issue 1

Jascha Clark practices in Ray Quinney & Nebeker’s Employment & Labor Law and Litigation Sections. Mr. Clark advises clients on an array of personnel-related matters involving compliance with federal and state labor and employment laws – from day-to-day human resource issues (such as employee discipline, employee leave, wage and hour questions, and disability accommodation) to defending employers from claims involving employ- ment discrimination and harassment. Mr. Clark also drafts and revises handbooks and other employment-related policies and procedures. Disabilities Act and the Utah Antidiscrimination Act. See Utah Code Ann. § 26-61a-104(2)(a)-(p) (which lists qualifying conditions for a medical cannabis card). Although there are open questions regarding how the Act will be interpreted and applied, it appears unlikely that Utah courts will, as a result of the Act, require private employers to change their drug testing policies and/or accommodate the use of medical cannabis. To begin with, the Utah Legislature’s consideration and rejection of a provision prohibiting discrimination by private employers against medical cannabis cardholders gives Utah companies an argument that the Act should not affect their current drug-testing policies. Further, unless expressly provided for by statute, most courts have concluded that the decriminalization of medical marijuana does not shield employees from adverse employment actions. Compare, e.g., Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 171 Wash. 2d 736, 752 (2011) (recognizing that statutory silence supports the conclusion that private employers are not required to accommodate off-site medical marijuana use) with Whitmire v. Wal-Mart Stores Inc., No. CV-17-08108- PCT-JAT, 2019 WL 479842, at *8 (D. Ariz. Feb. 7, 2019) (recognizing the “drastic dissimilarity” between medical marijuana statutes that do not apply to private employment and Arizona’s statute, which prohibits employers from terminating medical marijuana users unless they used, possessed, or were impaired by marijuana on-site and during work hours). Because Utah’s statute is silent as to accommodation of medical marijuana use, such accommodation does not appear to be required. That being said, employers interested in taking a more conservative approach should, at the very least, engage in an interactive process with the applicant or employee to evaluate other options, such as different medications, before making employment decisions. See Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 466 (2017) (stating that even if the accommodation of the use of medical marijuana were facially unreasonable, Massachusetts employers are still obligated to participate in the interactive process to explore whether there was an alternative, equally effective, medication the employee could use that was not prohibited by the employer’s drug policy). If you have a fact-specific inquiry, including regarding your drug testing policy or a requested accommodation, you should consult legal counsel. 15