With more and more States adopting medical marijuana laws, new questions are arising for employers regarding their requirements for compliance with the new laws.
Are employers required to allow employees with legal medical marijuana cards to consume marijuana on the job?
Can they be under the influence of the drug while at work?
What about driving or operating machinery?
For that matter, can employers even drug screen potential or current employees for marijuana and use the results for hiring and firing decisions?
These are all legitimate questions that a growing number of employers need to know the answers to because of the continued proliferation of state medical marijuana laws. To answer these questions, details of both federal law and the state marijuana laws need to be examined.
Starting with federal law, marijuana, for medical use or otherwise, is still classified as a Schedule 1 drug under the Controlled Substances Act and is federally illegal in all forms.
The Americans with Disabilities Act (ADA) (http://www.ada.gov/pubs/ada.htm) states that no employers can discriminate against an employee with a disability and must make a ‘reasonable accommodation’ to allow employment.
However, the use of marijuana is not protected as a reasonable accommodation because its use may pose a health or safety threat. Therefore, the person with a disability requiring the use of medical marijuana would not be discriminating against if employment were denied or terminated. So from the federal perspective, no laws are being broken by denying the use of medical marijuana or prohibiting being under the influence of marijuana in the workplace, regardless of its medical use.
Turning to individual state laws, while they all have major differences, they are some common themes.
Universally, the laws ensure that patients who legally obtain a medical marijuana card are not subject to criminal sanctions or prosecution within the state they obtained the card.
Since 2009, the Department of Justice has agreed to not prosecute individuals who are compliant with their state’s medical marijuana law but instead their enforcement priorities are on large scale sales. Because who is allowed to obtain a medical marijuana card and for what medical conditions varies by state, currently no state but Nevada allows for reciprocity of cards between states.
None of the current state laws dictate that employers must allow employees to either consume marijuana at work or be under the influence of marijuana at work. In fact, most state laws specifically state that the drug cannot be consumed in public but only in various definitions of private and prohibits activities such as driving while under the influence. The Colorado law even states that one is not allowed to ski while under the influence of marijuana.
In addition, none of the state medical marijuana laws include provisions that disallow drug testing for marijuana as a pre-employment screening test in consideration of employment decisions, nor such testing as a stipulation for continued employment.
There is precedence in the courts, such as the 2008 California Supreme Court decision of Ross vs. Raging Wire Telecommunications Inc., where it has been ruled that employers can prohibit employees from possessing, using, or being under the influence of marijuana at work, regardless of its legitimate medical usage.
It is treated the same way as being drunk, therefore the legality of the drug outside of the workplace is irrelevant. However, the courts in cases such as Ross vs. Raging Wire have also stated that employers cannot fire or refuse to hire a person because they have a medical condition they are using medical marijuana to treat.
That is a very important distinction that employers need to understand, and where it may get tricky in the hiring process, especially with pre-employment drug screening.
Brian Laslow is the author of The Marijuana Project: a novel about medicine and morality.
His book is a fictional account about a security consultant’s ethical controversy and experience with a medical marijuana client. It explores both sides of the medical marijuana debate and security issues surrounding the industry, all in the setting of a suspense novel.
Brian is an independent security consultant and has been in the security industry for over 30 years. He is an expert speaker in the field of security and holds multiple certifications in the security and consulting fields.
More information can be found at www.themarijuanaproject.org