Can Employees Smoke Medical Marijuana at Work?

Dear Rita:

We recently offered a management job to a terrific candidate, with the condition that he pass both a background check and a drug test. When he tested positive for marijuana, he told us not to worry and produced a doctor’s prescription for medical marijuana which he uses to relieve his pain from an injury. I don’t want to set the precedent of having an employee come to work "stoned" but I am not sure what my legal obligations are. Can you help me out? -- Smokin' in Spokane

Dear Smokin':

I understand your confusion! If the candidate were taking prescription codeine, you would seek a doctor’s opinion on whether he could perform his job while under the influence. Here's some background information that hopefully "clears the air" (couldn't resist the pun) on this issue:   

As of June 2010, laws legalizing possession of marijuana for certain medical purposes exist in fourteen states and the District of Columbia, including: Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Washington and New Jersey. (Similar legislation is being considered in several other states.)

Figuring out these state laws can put even the clearest thinker in a haze (!), but they basically allow a seriously ill patient to grow and/or use marijuana, generally with a doctor’s written or oral recommendation. The laws protect the prescribing physician and the patient from criminal prosecution. State laws conflict with the federal Controlled Substances Act which prohibits the possession, use and cultivation of marijuana, but a 2009 memorandum from the US Department of Justice states it will focus its resources on prosecuting large-scale enterprises that unlawfully sell marijuana, and not individuals who are compliant with their state's medical marijuana law.

The courts have been overwhelmingly clear, however, in supporting an employer's hiring and firing rights when a prospective or current employee registers a positive drug test. Court cases in several states have challenged the termination of an employee or the withdrawal of a job offer for individuals who have a legal prescription for marijuana use, based on a positive marijuana test. All courts have ruled in favor of the employer who denied employment based on the positive test. 

Furthermore, marijuana use is not protected as a "reasonable accommodation" for an employee under the Americans with Disabilities Act. State courts generally have ruled that employers are not legally required to accommodate marijuana use, whether the person is a candidate for employment or a current employee who comes to you and says she now has a prescription and intends to use it. Here are some of the differences among states:

  • In California, the state Supreme Court held that the law protects medical marijuana users from criminal prosecution, but not from being fired. The case in question involved an employee's off-duty use of medical marijuana to treat a disability.
  • In Oregon, physician-prescribed marijuana for chronic pain is legal (patients do have to register), but the law specifically states that employers are not required to accommodate the use of medical marijuana at work.
  • The state of Washington ruled that an employer's drug-free workplace policy can supercede the Medical Use of Marijuana Act.

Drug testing rules vary

Except for regulations that apply to government contractors and the transportation industry, there is no federal law that regulates drug testing in the private sector (which includes the nonprofit sector). However, many states have laws that prohibit random drug testing, and case law across the nation supports that position. The rationale is that the employer is invading the privacy of its employees. However, "reasonable suspicion" drug testing is pretty much universally accepted, which means that the employer has some reason to require an employee to take a drug test.   

If you suspect that an employee is under the influence of marijuana while at work, you should be able to articulate "reasonable suspicion" of impairment based on the employee’s appearance or behavior -- documentation of "the munchies" and a penchant for The Grateful Dead are clearly not sufficient. Does he smell of marijuana, is he acting inappropriately, has someone reported him smoking marijuana during a break? You should consult with an employment specialist and articulate your reasons before sending an employee off to the drug lab.

However, if you do test an employee, a urine test is not the best test to use. This is because cannabis can be detected on a standard drug screen, which samples urine, for days or even weeks after past use—long after any intoxicating effects of the drug have worn off. More reliable are blood and saliva tests. 

In a nutshell, you do not have to accommodate the use of medical marijuana when making a hiring decision or for current employees. With respect to current employees, all employers should have a written policy prohibiting the possession or use of drugs in the workplace, and specify whether testing is an element of the drug-free workplace program. And except for pre-employment drug testing, you should have "reasonable suspicion" before sending a current employee off to drug test for marijuana, hopefully using either a blood test or a saliva test. And if the test verifies that the employee was under the influence of drugs while at work, you can terminate his employment.

Pamela Fyfe is an HR attorney with the Nonprofit Insurance Alliance Group, where she counsels member nonprofits on wrongful termination, employment law and other matters to help keep them out of court. She keeps thinking she's heard it all, but she still gets surprised: she recently got a question about a job applicant stating that he tested positive for marijuana because his wife had a prescription and he had unwittingly inhaled "second hand smoke."

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Comments

What would be the situation if California voters approve the legalization of pot?

the right to work is a freedom and any employer should be free to hire and fire.

Why the drug test in the first place? An employee could be an alcoholic and pass a drug test, which would be much more detrimental to his work than smoking a joint off-hours.

I can understand drug tests for things that involve driving.

or operation of any heavy equipment (fork lifts, etc).

How many double yellow lines does a drunk see and how many does a pot smoker see when driving. The pot smoker sees the correct number. Or about the next day when a drunk has a hang over? A pot smoker does not have a hang over. The list goes on and on and on. If only we would "get it" someday. Lets not even go down the prescription drug road. Pleeeease... more damage is done with prescription drugs than both above mentioned combined.

I am a supporter of legalized marijuana and I agree with you about drinking. This article piqued my interest because we're only now just beginning to think about how to manage the use of prescription medications of all sorts in work situations. I don't know the answers but it sure is interesting to think about!

I would think what is at issue is whether or not it should be accomodated in the workplace. Thus far, based upon this article, the courts are fairly clear that that the employer does not need to accomodate its medical use.
I would suggest that as advocates and rolemodels for clients, it would be inherent that non-profit agency staff be mindful of that fact and behave accordingly.

The correct spelling is "accommodated."

Let us not forget that most States require a "recommendation" which is vastly different than a prescription. Also, a legal prescription for Marinol will also produce a positive test result and, I would think, the law would side with the employee. As a supporter of medical marajuana, I can see both sides of the argument. As an employee, I've seen workers who were not competent without using anything, and those who were great while using.

Why not discuss your concerns with the employee? There's still no way anyone is exempt from driving under the influence, so that would be a major issue to be addressed.

How many individuals in any work place are taking some type of prescription drug which alters the individual's perceptions and actions? prescription drug use is so pervasive for alleged mental conditions. According to a recent study, only 11 percent of psychiatrists offer verbal counseling with the patient as a form of therapy. Drugs for health conditions such as allergies frequently alter a person's perception and ability to function. This is silliness - we have a list of "legal" ways to alter perception versus a list of "illegal" ways to do so. Meanwhile 23,000 people have been killed in Mexico's drug wars on behalf of the USA's (us/our) addictions.

In New Jersey those who have a driver's license enabling them to drive school buses or heavy trucks are subject to random testing. i know a airline flight attendant who told me they were subject to random drug testing.

I do think that for certain kinds of jobs random drug testing is alloed - perhaps not for office work - but there are a lot of jobs where any impairment can cause you to be a danger to yourself and others.

Why did the prospective wait until after his drug test to produce the doctor's notice? Why not be forthcoming at the beginning?

I was offered a management job for a wine & liquor operation. After the job offer, they needed Preemployment drug testing. I tested positive for marijuana.
I don't smoke, however my best friend who suffers from multiple sclerosis, smokes to relieve his body pain. Now, I was asked to retest the same urine sample. I really love this job and have so much to bring to the table. What are my chances if the retest comes back positive.? I am 54, responsible and decent citizen with excellent background check.I need answers to my question.

Thank you

joe

Joe-

I would explain your situation and request a saliva or blood test--they monitor short-term use, as opposed to long-term exposure. If that is not possible, you could try "detoxifying" with an over-the-counter kit which is sold at many health stores and head shops--basically you drink a lot of tea/water and that runs the thc out of your system. Of course in the mean time, you should request that your best friend not smoke in your direct presence to avoid contamination. Best of luck, I hope it all works out for you.

A re-check will come back positive, because the purpose of the re-check is to mitigate the possibility for testing error. The stuff is still in the urine. The best bet is to explain the situation and, as someone above said, request a different type of analysis. Good luck, but I don't think you're getting the job.

http://businessforgoodnotevil.blogspot.com/

I once tested positive for THC and had the other half of my urine sent to a lab for more extensive testing; it came back NEGATIVE. False positives do happen!! It happened to me!!

For me, working in Mendocino County where use of marijuana is prevalent, the biggest issues are 1) our grants where I have signed off that we are a drug-free workplace, especially our federal ones and 2) the nightmare legal situation I would have if I knew someone would test positive and I let them drive at work and they got into an accident. Even if they weren't impaired (which is hard to measure, by the way with marijuana unlike alcohol), I can imagine an attorney making a pretty good case that I knowingly let an employee who I knew would test positive drive. Essentially we end up with a don't ask, don't tell policy, where there is a social norm supporting medical use and adult social use. If you get busted and it impairs on your credibility or the agency's credibility (and since we do alcohol and drug prevention and treatment with kids, it does), I can't support you so you take the risk if you use.

What if the m.m. Patient works in health care? Are they exempt from the rules. I just was at a medical center and swore a CNA smelled like marijuana. When confronted he simply smiled and said don't worry I have a medical card for marijuana. Is that ok to have a hospital worker on marijuana let alone a CNA? What's next.........my doctors office smelling like pot.....sure that sounds cool but how am I so pose to listen to the dr if he is under the influence of marijuana

How are you suppose to listen to the doctor when he is on.......the Vail is lifted. Change to a respectable doctor which is better at concealing his use or is just a pill Popper instead.

My husband just got fired yesterday because he tested positive to a urine test for marijuana. I smoke marijuana at home and he became contaminated. I would like to know if this would be considered wrongful termination? thank you

The facts simply don’t support the public perceptions on Marijuana Seeds. We ought to be really worried about the legal opioid drugs that young people are actually overdosing on and not those that absolutely no one overdoses on.

Oh yeah the first ppl to die in work related or whatever will end legalization:(

It is an interesting topic. I am definitely in favor of the legalization of marijuana, but at the same time we don't want a bunch of people showing up high at work. That is not acceptable. http://www.valleyevaluation.com/

Very interesting. Highly doubt this would be acceptable at our work.

why not? if it is for medical reason not just recreation.

www.beaverseeds.ca

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