Suppose you are a small business owner. One of your employees is caught vaping marijuana in the bathroom. You fire the employee and later learn they have a medical marijuana (or “green”) card and are threatening to sue you for wrongful discharge and discrimination.

Luckily for you, the employee most likely does not have a valid claim for the marijuana incident alone (at least for now). 

Generally, an employer may prohibit the use of alcohol or other drugs by employees on its premises. Currently, in Montana, this applies equally to the use of medical marijuana. An employer may prohibit the use of marijuana on the premises even if the employee has a “green card.” In fact, the Montana Marijuana Act specifically states that employers are not required to accommodate the use of medical marijuana. It also allows employers to include contract provisions prohibiting the use of marijuana, even for debilitating medical conditions. Furthermore, the Act specifically bars employees from suing employers for wrongful discharge or discrimination for failing to accommodate their marijuana use. 

Thus, under current law, an employer may prohibit or restrict medical marijuana use by employees and may take adverse actions against employees for such use, without being at risk of liability for either a disability discrimination claim or a wrongful discharge claim. Notably, this stands in contrast to other medical needs that employers must reasonably accommodate in order to avoid running afoul of disability discrimination laws.

Therefore, in the example above, the employee’s action will probably fail, since you (the employer) are free to fire the employee and to adopt an employment policy prohibiting the use of marijuana. 

Ok—so the employee breached your employment contract, you have the right to fire them, and you are not liable to them for the incident. But…have they also violated the law?

Most likely, yes. Indoor use of medical marijuana in public spaces is against the law in its own right. The Montana Marijuana Act prohibits the use of medical marijuana in plain view or in a place open to the general public. Additionally, the Montana Clean Indoor Air Act prohibits smoking in an enclosed public space. As someone who owns, manages, operates, or otherwise controls a public place or place of employment, you have a clear interest in mandating compliance with the Montana Clean Indoor Air Act, since you may be fined for the violation.

But, hold on, the employee wasn’t “smoking,” they were “vaping marijuana.” Is it still against the law?

Yes. Under the Montana Clean Indoor Air Act, “smoking” is defined to include the use of marijuana. The Montana Marijuana Act defines “usable marijuana” as “the dried leaves and flowers of the marijuana plant and any marijuana derivatives” (which includes byproducts of the marijuana plant, such as marijuana concentrates and marijuana-infused products). Therefore, vaping marijuana can also potentially violate both the Montana Clean Indoor Air Act and the Montana Marijuana Act. 

Employers should watch for legal developments in this area. HB 455—which was before the Montana Legislature this session but was tabled on February 25, 2019—would have eliminated the statutory protections for employers in the Montana Marijuana Act that are cited above, and would have instead expressly prohibited employers (and landlords) from prohibiting medical marijuana use in the workplace (or rental). If such changes are made to the Montana Marijuana Act in the future, employers that do not receive large federal grants (which generally require compliance with federal law, which still prohibits all marijuana use) will need to reasonably accommodate medical marijuana use. 

Would you like your employee handbook and policies reviewed by an experienced employment law attorney? Do you have questions or need advice on how to handle a workplace dispute? Worden Thane has a strong employment law practice. We draft employee handbooks and other policies, advise as to tax consequences, assist employers with discipline and termination decisions, and represent employers in administrative and judicial proceedings. Feel free to contact us to have a conversation with one of our attorneys today!

This article as written by Jori Quinlan with contributions from Dimitrios Tsolakidis