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Companies will traditionally impose a zero-tolerance, drug-free workplace policy to reduce any risks connected with impaired employees. It is considered the safest and most apparent protocol. However, as of lately, the recent surge in state laws allowing patients to legally access marijuana for medicinal purposes has accrued uncertainty.

For employers and employees alike, it is difficult to determine whether a company can terminate an applicant or employee, who tests positive for marijuana but provides a valid medical marijuana card. There are no certain answers due to the changing nature of the law, but if we consider the current legal point of view, it depends on several factors.

Factors That Don’t Help MMJ Holders

Many of these factors, if not more, will allow an employer to maintain a zero-tolerance drug-free workplace policy, and terminate any applicants or employees who tests positive for marijuana. Even if or when, a valid prescription is provided.

  • If the employer or position is federally regulated

  • If the state does not adopt a medical marijuana law that explicitly protects employees

  • The position is subject to safety standards imposed by federal regulations

  • The employer is a federal contractor or grantee

  • The state at issue does not have a medical marijuana program in place

Some medical marijuana laws implicitly state that employers have no obligation to accommodate an applicant’s or employee’s use of medical marijuana. In fact, employers in most states are reserved the right to discharge applicants or employees who test positive for marijuana, even when a valid medical marijuana card is provided.

This is due in large part of the United States establishing the Drug Free Workplace Act (DFWA) in 1988. The DFWA requires federal contractors in particular, to prohibit the “unlawful… use of a controlled substance” by employees in the workplace. Many times this serves as a condition of employment upon signing employment papers. Federal guidelines also do not allow regulated employees, such as those in safety-sensitive positions, to use marijuana even if it is permitted by a valid prescription under state law.

Factors That Help MMJ Holders

Some states do protect medical marijuana users through anti-discrimination laws or reasonable accommodations addressed at employers. The courts have clarified that a medical marijuana patient may still be protected under the ADA (Americans with Disabilities Act), if he or she has another condition that meets the ADA’s definition of a disability. Specific laws may also include discourse that prohibits employers from discriminating against applicants or employees, based on their use of medical marijuana for a particular disability.

Due to grey areas of the law, you may have to evaluate prospective jobs to see if your MMJ needs conflict with company policy or the job’s responsibilities. Furthermore, if MMJ services are needed and you are currently employed, it is recommended to consult with your boss or human resource department to address any concerns. 

What To Do Next

Employers and employees must remain attentive to developing case laws surrounding this issue. As for advocates, reasonable accommodations for medical marijuana use may not happen in the near future. On the bright side, off-duty use is being considered in most states and for jobs with limited liability.

In the end, MMJ users can be protected if the state has written language that they are legally protected from discrimination. Yet, if there is no language protecting MMJ patients, the employee has every right to terminate your application or employment.

If your current employment situation is vulnerable to your MMJ needs, please contact us at Ramos Law for further legal assistance.

Sources:

NORML – Working to reform Marijuana Laws

State Medical Marijuana Laws

U.S. Equal Opportunity Commission 

Discrimination Laws Regarding Off-Duty Conduct