A Fired Employee’s Refrain: But I Thought Marijuana Was Legal?

A Fired Employee’s Refrain: But I Thought Marijuana Was Legal?

States began decriminalizing marijuana in 1973.  In 1996, California became the first state to allow the medical use of marijuana. Not wanting to be outdone, others followed suit, with Washington and Colorado becoming the first to legalize recreational marijuana in 2012. In 2019, with all but four states in the U.S. currently having some form of legalized cannabis available for purchase by their citizens, does it even make sense for employers to test applicants or employees for THC use? The short answer is yes: for the simple reason that marijuana is still illegal – and has been for almost 50 years – under federal law. The federal government lists marijuana as a Schedule I drug, right alongside heroin, ecstasy, Quaaludes and bath salts.  According to the government, marijuana has no medicinal value and a high potential for abuse. Therefore, even if your state has decriminalized marijuana, you run the risk of being accused of condoning the use of an illegal drug in the workplace if you do not do some drug testing of employees.

Employers Have Many Reasons to Drug Test Their Employees

Some businesses are legally required to conduct drug testing. Commercial truck drivers and airline pilots, for example, are required to undergo drug testing under federal law; and school bus drivers must be drug tested in many states. The Occupational Safety and Health Administration (OSHA) has also stated that a failure to take action (by testing and disciplining) in the face of apparent employee drug intoxication, is a failure to provide the “safe and healthful workplace” mandated by federal law.

Most states provide statutory discounts for workers’ compensation premiums if the employer implements a drug-free workplace policy that mandates certain types of drug testing (including THC, the psychoactive drug in marijuana).

Particularly in workplace environments that involve machinery, employers often drug test, to prevent employees from endangering the lives of coworkers and others. Although some states allow random testing, a business will attract less invasion of privacy lawsuits by announcing and limiting testing to “reasonable suspicion,” which includes accidents “where the employee’s actions cannot be ruled out as a cause.”

Based on the foregoing, a prudent employer in every state will want to at least preserve the right to drug test employees for marijuana under appropriate circumstances. Simply announcing a “zero tolerance policy,” however, may not work, and may actually get you sued.

An Employer Must Accommodate the Underlying Medical Condition – But Not the Drug Use

A major problem with announcing a “zero tolerance policy” with respect to marijuana, is that you may run afoul of the federal Americans with Disabilities Act (ADA) and its state analogs.  The ADA is designed to protect employees from discrimination as a result of a disability. “Disability” is defined broadly, and the proper use of legally-prescribed drugs usually falls under the protection of the ADA.

There are a numerous – and growing – number of medical conditions that qualify as a disability under the ADA for which doctors have begun prescribing marijuana as a treatment. These conditions include cancer, AIDS, PTSD, Parkinson’s disease, and many others where a jury will certainly have sympathy for the employee. The ADA, however, has a carve-out for drugs that are illegal under federal law.

In light of all this confusion, here is how an uncontrolled “zero tolerance policy” may get your company sued:

  • You cannot refuse to hire, or send someone to get tested, because they have a marijuana prescription, or volunteer that they use marijuana;
  • If an employee asks if the company will “accommodate” their use of marijuana, the answer has to be “the company will reasonably accommodate any underlying medical condition, but such accommodation will never involve allowing you to possess, use or be under the influence at work” (they cannot be fired for admitting to marijuana use);
  • Your employee handbook should define as an “illegal drug,” any form of marijuana or product containing THC, or you run the risk of terminating an employee for a drug that they believed to be “legal” under state law; and
  • Ensure that any disciplinary action taken is based on objective conduct (smoking at work, being clearly intoxicated, etc.) and not just based on the presence of THC in someone’s system left over from the weekend, for example.

It should be every employer’s goal to avoid employment lawsuits; and until the federal government de-lists marijuana from its current Schedule I position, avoiding lawsuits means doing some drug testing, including marijuana.

As first seen on Money Inc. on July 24, 2019.

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