Careless Conflicts: Medical Marijuana Implications for Employer Liability in the Wake of Vialpando V. Ben's Automotive Services

By Fitting, George | Iowa Law Review, November 1, 2016 | Go to article overview

Careless Conflicts: Medical Marijuana Implications for Employer Liability in the Wake of Vialpando V. Ben's Automotive Services


Fitting, George, Iowa Law Review


I. Introduction

Cannabis was once a staple of the American economy, when hemp was prized for its myriad commercial applications.1 After the Industrial Revolution introduced new technologies that reduced hemp's usefulness, people began to value the medicinal properties of marijuana instead. until the 20th century, cannabis was legal at both the state and federal levels.2

However, rampant narcotics addiction to other drugs like cocaine and heroin (then marketed as medicines), coupled with a rising prohibitionist movement, caused the public to lump cannabis in with these other substances and criminalize cannabis possession and distribution.3

State and federal marijuana laws were complementary until 1996, when California became the first state to legalize medical marijuana, prompting 22 other states and the District of Columbia to do the same over the next several years.4 Since the federal government did not change its position, this created a conflict between state and federal law.5 Under the Supremacy Clause of the Constitution, federal law controls where state law and federal law conflict.6 States cannot forbid federal prosecutions of their citizens with medical marijuana prescriptions under federal law, but they can eliminate state prosecutions of those citizens under state law.

Employers face significant liability issues if they retain employees who have obtained a medical marijuana prescription in states where it is legal to do so.7 Examples of this liability include loss of federal contracts, vicarious and negligent retention and hiring liability, violation of federal law or public policy, and workplace safety violations.8 Until recently, state courts have uniformly permitted employers to refuse to pay for medical marijuana under workman's compensation or employee insurance plans, and to terminate employees who fail a drug test for marijuana regardless of whether they have a prescription.9 Recent cases in Michigan and New Mexico broke away from traditional judicial deference to employer discretion on the issue, and have highlighted employers' dilemma.10

This Note argues that shielding employers from this liability without ignoring the needs of medical marijuana patients will require significant state and federal legislative reforms. Part II briefly introduces marijuana regulation, tracing its development from legal use in the 19th century to the present conflict between state and federal law, and explores the theories of liability under which employers could be charged. Part III explains how recent case law has elevated the need for a solution to this problem, and Part IV analyzes four potential solutions. Part V advocates for either changing marijuana's classification under the CSA or a combination of state and federal legislation to shield employers from liability if they retain employees who use medical marijuana.

II. Cannabis Regulation in the United States and Its Relationship to Employer Liability

This Part examines the legal status of cannabis in the United States from pre-criminalization to 2015. It discusses uncertainty about employer liability issues that arose when some states legalized medical marijuana, but Congress did not change marijuana's classification as a Schedule I controlled substance. An understanding of the historical context from which current legislation has emerged is essential to an informed analysis of the larger problem that this Note considers.

A. The Regulatory framework of Cannabis in the United States

State and federal cannabis laws currently conflict on the issue of cannabis regulation, but cannabis was not a criminalized substance at either level in the United States until the 20th century.11 In fact, hemp12 was once widely used as a commercial fiber, and played an integral role in American history.13 As a result of rising prohibitionist sentiments, and a vigorous campaign that culminated in the Controlled Substances Act of 1970, Congress criminalized cannabis nationwide and state legislatures followed suit. …

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