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
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.”