Do you conduct pre-employment drug screens? What if one of your applicants tests positive for
marijuana? What if that candidate presents you with a card, showing that s/he uses medical marijuana, for treatment of a chronic condition? As you may know, medical marijuana is legal in at least 24 states, and the District of Columbia. Some state courts have also ruled that you cannot fire or refuse to hire an applicant/employee just because s/he uses medical marijuana. What if you employ people in one or more of those states? Can you still conduct drug screening? Can you still enforce drug-free workplace policies or does that all go to pot? (Sorry I just couldn’t resist). Read on to learn what you can and cannot do, and what you may or may not have to do…
(image from freeweekly.com)
First, don’t scrap your drug testing or drug-free workplace policies so fast. Yes, more than half the States have legalized medical marijuana. In most cases, all that really means is that someone who does use marijuana for medicinal purposes is protected from criminal prosecution for marijuana use/possession. By and large these statutes are silent on any employment issues that medical marijuana may raise. Furthermore, marijuana use and possession is still a federal crime, and federal officials and agencies still take the position that medical marijuana users are not protected from criminal prosecution — at least not under federal law.
Some states have started passing legislation and some state courts have issued some rulings that go beyond the issue of criminal prosecution. Let’s have a look. Pennsylvania recently passed a law expressly prohibiting employers from discriminating against candidates or employees based on their status as medical marijuana card holders. However, that law only speaks to the issue of positive drug test results, and only then with respect to very specific duties (e.g. public utility workers). New Jersey’s medical marijuana law states that employers do not have to accommodate medical marijuana use at work, but says nothing about after-hours use. Arizona, Minnesota and Delaware provide specific protection to employees with medical authorization who test positive for marijuana. The Supreme Judicial Court of Massachusetts just issued a ruling that an employee fired for medical marijuana use (which showed up on a drug test) could file a disability discrimination suit under state law.
What do you do if you employ people in any of the above states? At a minimum, you would have to look past the positive test results. You might then need to determine if there are any jobs at your company for which a positive test result would be an issue. Such jobs could certainly include safety-sensitive positions. You would probably want to document any jobs where you believe the positive test result is an issue. You may need to show that the employee is impaired during work hours due to his or her marijuana use. Unfortunately, neither these laws nor the courts in those states tend to provide guidance as to how to make that determination. (Urine tests do not measure impairment.)
What about the Americans with Disabilities Act? Wouldn’t it provide protection here? Would allowing the use of medical marijuana be a reasonable accommodation? As of now, no federal court has taken that position, and probably will not do so as long as marijuana use/possession remains a federal crime. (NOTE: Last year, the U.S. Supreme Court refused to hear a case asking for legalization of medical marijuana.) That does not mean that you would not have to provide some other reasonable accommodation for the employee with respect to the underlying condition. It just means that you are not required under the Americans with Disabilities Act to alter a drug-free workplace policy, whether or not the employee has medical authorization to use marijuana.
While it would seem clear that you can prohibit employees from using or being under the influence of medical marijuana during work hours, what about after hours? The answer to that question is also unclear. Neither the US Supreme Court nor federal circuit courts have ruled that allowing after hour use can never be a reasonable accommodation. In fact, there is a pending case in New Jersey on that issue. A temporary employee, who disclosed his medical marijuana use to the staffing agency up front, initially was hired with no issues–until he was up for a new assignment that required a drug test. In the wake of the positive test result, he was terminated, and he sued, alleging disability discrimination under the New Jersey Law Against Discrimination. The staffing agency moved to dismiss, arguing that since marijuana use is illegal under federal law, it cannot be a reasonable accommodation. The employee argued that the NJLAD is supposed to be construed broadly to provide protection to disabled people, which should include medical marijuana users. The court has yet to decide this case, so stay tuned. (The case is Barrett v Robert Half Corp.)
OK, you may be thinking, can we cut to the chase? Can we test for drugs Can we enforce zero-tolerance drug policies? Must we accommodate medical marijuana or not? In most states I would say yes, you can enforce those zero-tolerance policies, and no you do not have to hire someone who tests positive for marijuana. In the states mentioned above, however, you should proceed with caution–which of course means, check with local employment counsel, and look at whether and when such use might negatively impact an employee’s to perform their job functions safely.
This seems like a good place to stop for now — so I will, until next week, or course. See you then.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Are you a N.J. employer/business owner? Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.
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