Rethinking Drug Testing for Marijuana

PLEASE NOTE: THIS BLOG DOES NOT AND IS NOT INTENDED TO PROVIDE LEGAL OR PROFESSIONAL ADVICE OF ANY KIND AND IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. THESE VIEWS ARE NOT THOSE OF NAWLA'S BUT ARE EXCLUSIVELY THOSE OF THE AUTHOR.

I received a call from a client two weeks ago who was struggling with a tricky personnel issue on the topic of drug testing.
Bob, who owns a company in Vermont and has a policy of mandatory drug testing for all new hires, wanted to hire a new shift manager for his small manufacturing plant. The problem was that the highly-qualified man he wanted to hire has a medical marijuana prescription to treat his PTSD.

Bob’s questions were these: “Can I make an exception and not drug test him? If I drug test him, can I overlook the flag for positive marijuana use? If I overlook his use, what do I do about other future hires? Do I have to pass on him as a candidate because of his legally-prescribed drug use?”

Bob’s dilemma is increasingly common as states and local jurisdictions move to legalize pot. To date, 29 states and the District of Columbia have passed measures to legalize medical marijuana use, while eight states and the District of Columbia have legalized recreational use. To make matters even more complicated, marijuana remains a Federal Schedule 1 Controlled Substance – the most tightly restricted category of substance. Thus, for many employers, all this creates a point of conflict between federal law, state law and their own company policies.

And that’s not the end of it.

Zero-Tolerance Workplaces

For employers seeking to maintain a zero-tolerance, drug-free workplace, navigating these conflicting requirements just got more complex given a recent high-court ruling in Massachusetts. In that case, the Massachusetts Supreme Judicial Court on July 17 ruled that Advantage Sales and Marketing L.L.C., which fired new employee Cristina Barbuto after her pre-employment drug screening showed positive for marijuana use, could be sued under federal handicap discrimination statutes. Ms. Barbuto suffered from Crohn’s disease and used medical marijuana to stimulate her appetite, according to court documents. The court ruled that allowing off-duty medical marijuana use constituted a reasonable accommodation for Barbuto’s disability. 

So, for employers in Massachusetts, the decision has the following impact:

  • They may not adopt a “zero-tolerance” prohibition of pot use and must instead attempt to accommodate use that is: 1) offsite; and 2) certified as medically necessary.
  • They may not terminate or discipline employees solely because of their offsite medical marijuana use.
  • They may restrict onsite medical pot use and do not (yet) need to accommodate offsite recreational use.

While this decision pertains to employers in Massachusetts specifically, all employers should take note because there is a growing trend within the courts toward protecting the offsite legal use of medical marijuana. For example, in May of this year, a Rhode Island court ruled that employers may not discriminate against individuals based on their off-work pot use. Another test will be how the courts view Florida’s new bill that attempts to protect employers who wish to maintain a drug-free workplace by specifically stating that they do not need to accommodate the medical use of medical marijuana. That statute is certain to face a court challenge. 

For employers that wish to maintain a drug-free workplace, it’s best to be mindful of the court cases in your state and be sure to craft a clear policy that does not intend to discriminate against individuals based on their disability. And employers who chose to deny employment or to discipline or terminate employees based on their medical marijuana use are strongly encouraged to seek counsel prior to taking action.

Accommodating Medical Marijuana Use

For employers that decide to accept their employees’ use of medical marijuana, they should:

  • Create a well-crafted policy that clearly articulates what use is allowed and in what form, when use is authorized (before or after work), whether there are safety sensitive positions that require special consideration, what medical documentation is required, and a clear statement that the policy is not intended to discriminate against individuals with disabilities.
  • Require written approval from the prescribing doctor that includes the legal validation, medical basis, schedule of use, methods of administration, accommodations or restrictions, and expected length of use.
  • Require employees who are certified to use medical marijuana to report any changes in the marijuana product they use, the amount of marijuana they are prescribed, how often they use it, their schedule of use, and how they ingest the drug.
  • Prohibit marijuana use while an employee is at work (or on the way to or from a job site) unless the employer is certain that the using worker, coworkers, or the public are not at risk from any neurocognitive and judgment impairment associated with that worker’s marijuana use.

Mandatory Drug Testing

Given the quickly evolving landscape of legal and medical marijuana use, employers should be mindful about instituting mandatory drug testing of pot. As was the case in Massachusetts’ Advantage Sales and Marketing case, denying employment to individuals using medical marijuana can leave you vulnerable to a claim of discrimination.

Some employers within states with legal recreational and medical marijuana have simply dropped the drug from the screening panel. Employers who maintain marijuana on their drug screening panel are wise to treat positive marijuana test results with care –rather than enforcing an automatic denial of employment, discuss the results with the employee, seek to understand the nature of the individual’s use and consider whether an accommodation is justified.

Safe Workplaces

Finally, no statute or state laws require an employer to tolerate intoxication or impairment while on the job, particularly if that impairment can result in injury or harm to the company or its employees. Just as you would do for someone taking legally prescribed pain killers, if you suspect impairment, be sure to release the employee from work until he or she is no longer impaired, obtain the necessary documentation for the prescribed medication, and ensure the employee’s use is appropriate and conforms to your drug policy.

By Claudia St. John, President – Affinity HR Group Inc.

Claudia St. John is president of Affinity HR Group, Inc., NAWLA’s affiliated human resources partner. Affinity HR Group specializes in providing human resources assistance to associations such as NAWLA and their member companies. To learn more, visit www.affinityhrgroup.com.

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