Violation of employer policy: Failure to notify employer of medical marijuana use justifies termination of employee

Posted on September 27, 2021

By: Lily Crespo Esq.

Quick takeaway: Employers should review policies regarding the use of medical marijuana. This case makes clear that notification requirements pass legal muster. Additionally, failure of an employee to notify employer of medical marijuana use in violation of employer policy can be adequate foundation for termination of the employee.

What happened: The Montana Supreme Court decided an employer justified in terminating an employee who failed to notify the employer of their medical marijuana use. In this case, the employer had enacted a policy provision that required notification if an employee takes a drug that “may have adverse effects on their ability to perform their job safely and efficiently”. The purpose of this provision was to ensure that an employee’s use of a controlled substance “does not pose a threat to his or her own safety, or the safety of co-workers and that the employee’s job performance will not be significantly affected by the drug or Controlled Substance.” The provision also set forth a clearly defined protocol for making that determination.

Background: Barthel was employed with Barretts Minerals, Inc. (Barretts) as a lab technician and loader operator from July 2012 until his termination on March 28, 2019. Barthel was terminated after testing positive for THC in a random drug and alcohol urine analysis test.

• In January 2019, Barthel’s physician prescribed medical marijuana as treatment for his diagnosed Post-Traumatic Stress Disorder (PTSD) related to an accident several years earlier. Barthel received his “green card” and began using medical marijuana during the evenings after work in February 2019. Barthel did not use medical marijuana immediately prior to nor during any of his work shifts.
• On March 15, 2019, Barretts randomly selected Barthel for a drug and alcohol urine analysis test pursuant to the company’s Human Resources Policy and Procedural Guide (the Policy). Barthel informed his supervisor, James de los Rios, that he had been prescribed medical marijuana and would likely test positive for THC. Barthel was placed on suspension pending the results of the drug test. On March 28, 2019, the drug test identified the presence of THC in Barthel’s system. Barretts terminated Barthel for violating the Policy.
• The Policy prohibits employees who occupy what are termed “Safety/Environmental/Security Sensitive Positions” (SESSP) from taking any legally obtained drug or controlled substance if such use “may have adverse effects on their ability to perform their job safely and efficiently.” The Policy provides an avenue for SESSP employees to take legally prescribed drugs or controlled substances while in Barretts’ employ, but only if the employee notifies a supervisor of such use. Management then determines, in consultation with a health care provider, if the employee poses a safety threat or if his job performance would be adversely affected. The Policy provides that “[e]mployees in violation of this Policy may be subject to immediate termination of employment.”
• Following his termination, Barthel filed a complaint alleging wrongful discharge from employment under §§ 39-2-904(1) and 39-2-210, MCA; employment discrimination under §§ 49-2-303 and 49-4-101, MCA; and sought a declaratory judgment that § 50-46-320(4)(b) and (5)(b), MCA, of the Medical Marijuana Act (MMA) are unconstitutional as applied to this case.
• Barretts and de los Rios moved to dismiss the complaint, arguing that the complaint failed to state claims for wrongful discharge and discrimination because Barthel’s failure to notify Barretts of his use of medical marijuana violated the company’s Policy, which constituted good cause for termination. Barretts further argued that the MMA bars any cause of action for wrongful discharge and employment discrimination based on marijuana use. In response, Barthel asserted that he complied with the Policy at all times because the marijuana was prescribed by a licensed health care provider, and his off-duty use did not “affect the safety of the employee, co-workers, or members of the public, the employee’s job performance, or the safe and efficient operation of the Company facility.” Barthel further contended that the MMA is unconstitutional to the extent it bars causes of action for discrimination and wrongful discharge.

What the court decided: The court found the employee’s failure to notify the employer of his medical marijuana use was sufficient grounds for termination because he directly violated the employer policy. The Wrongful Discharge from Employment Act (WDEA) provides employees an exclusive remedy for wrongful discharge. Section 39-2-902, MCA. A discharge may be wrongful if it was without good cause. Section 39-2-904(1)(b), MCA. Barthel failed to notify Barretts that he was taking a controlled substance that may have had adverse effects on his ability to perform his job safely and efficiently. His failure to follow Barretts’ Policy constituted good cause for termination.

The relevant provision of the Policy’s “Misuse of Legal Drugs” section reads as follows:

The use of any legally obtained drug or Controlled Substance by any employee while performing Company business or while in a Company facility is prohibited to the extent such use may affect the safety of the employee, co-workers, or members of the public, the employee’s job performance, or the safe and efficient operation of the Company facility. SESSP employees are required to advise their supervisor whenever they work while taking a legal drug or Controlled Substance that may have adverse effects on their ability to perform their job safely and efficiently. An employee may continue to work, even though using a legal drug or Controlled Substance if Management has determined, after consulting with the Company health care provider and with Human Resources, that the employee does not pose a threat to his or her own safety, or the safety of co-workers and that the employee’s job performance will not be significantly affected by the drug or Controlled Substance. (Emphasis added.)

The crux of the issue was whether, under the “Misuse of Legal Drugs” provision, the phrase “may have adverse effects,” requires SESSP employees using medical marijuana to immediately notify management before continuing their job duties regardless of the quantity or timing of that usage. The parties disagree as to how the word “may” operates in this provision. “An ambiguity exists where the language of a contract, as a whole, reasonably is subject to two different interpretations. . . . However, the mere fact that the parties disagree as to the interpretation of a contract does not automatically create an ambiguity.”

The indisputable purpose of this provision is to ensure that an employee’s use of a controlled substance “does not pose a threat to his or her own safety, or the safety of co-workers and that the employee’s job performance will not be significantly affected by the drug or Controlled Substance.” The provision sets forth a clearly defined protocol for making that determination. The protocol begins with the employee notifying management of the substance being used. Notwithstanding the employee’s use of the controlled substance, the Policy allows that the employee “may continue to work . . . if Management has determined, after consulting with the Company health care provider and with Human Resources, that the employee does not pose a threat to his or her own safety, or the safety of co-workers and that the employee’s job performance will not be significantly affected by the drug or Controlled Substance.” (Emphasis added.) Management can only make that determination, in consultation with the Company health care provider and Human Resources, if it is notified of the employee’s use of the drug or controlled substance. Barthel’s argument that the Policy did not require him to notify Management if he unilaterally determined that his marijuana use did not pose a safety risk or affect his job performance would effectively nullify the entire process involving Management, the Company health care provider, and Human Resources.

Under the plain terms of the Policy, the only set of facts Barthel could prove to withstand a motion to dismiss is that he had in fact notified his employer of his medical marijuana use. His complaint alleges the opposite—that Barthel worked for a full month while taking medical marijuana without notifying his supervisor. Because the provision in the policy requires notification if an employee takes a drug that “may have adverse effects on their ability to perform their job safely and efficiently,” Barthel violated company policy by failing to notify Barretts. Barthel’s violation provided good cause for his discharge.

What this means for employers: The Montana Supreme Court has upheld carefully drafted and reasonable notification requirements for employees who are using medical marijuana. Employers should undertake a policy review to reflect changes in the law. Contact us for our policy update services.

What is the name of the case and where can you read it? The name of the case is Barthel v. BARRETTS MINERALS INC., 2021 MT 232 – Mont: Supreme Court 2021

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.