United States: But I Have a Prescription! – Employee Drug Tests in the Age of Medical Marijuana

Last Updated: June 29 2010
Article by Eric B. Martin and Jeffrey Shapiro

Background

In March 2010, national media attention focused on a Wal-Mart in Battle Creek, Michigan after it fired a 29 year-old man who tested positive for marijuana use following a random drug test. What caught the attention of the media – and employment lawyers – was the fact that the employee was battling cancer and had a prescription for the use of medical marijuana. Media attention was mostly unfavorable toward the employer, and a lawsuit is expected.

Employers are increasingly facing the difficult question of how to handle employees who have valid state prescriptions for the use of medical marijuana. Currently 14 states permit the use of medical marijuana: Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Several other states are considering similar laws, and this fall citizens of California will have the opportunity to make recreational use of marijuana legal in that state.

Despite this trend, the use and possession of marijuana is still a violation of federal law. In 2005, the United States Supreme Court held that the federal government had the right to regulate marijuana as it saw fit regardless of conflicting state laws permitting its use. Raich v. Gonzales, 545 U.S. 1 (2005). Nonetheless, states have continued their medical marijuana programs, and employers are frequently required to deal with the ramifications of those programs.

One source estimates that there are 300,000 registered medical marijuana users in the United States, and the numbers are rapidly increasing. At the same time, approximately 84% of employers conduct pre-employment drug screening, 73% conduct suspicion-based testing, 58% conduct post-accident testing and 39% conduct random drug testing.

When an employee with a valid state prescription for the use of marijuana tests positive, employers are faced with a difficult dilemma. This is especially true since an individual can test positive for marijuana use without being under the influence of the drug at the time of the test.

Legal Requirements

Two laws come into play in cases of employment discipline for medical marijuana use – the Americans with Disabilities Act (ADA) and the law of the specific state where the employee works. While the developing trend in ADA law holds that an employer's discipline for the use of medical marijuana is not a violation, the law is still a bit murky in this area. Moreover, regardless of federal law, state laws may provide additional protections to employees under these circumstances.

Federal Laws

Under the ADA, an employer may not discriminate against a "qualified individual with a disability" for obtaining treatment for that disability or for the side effects of that treatment. However, the ADA expressly provides that an employer may (1) prohibit the "illegal use of drugs" at the workplace by all employees; and (2) require that employees not be engaging in the "illegal use of drugs" in the workplace. The term "illegal use of drugs" means the use of drugs, the possession of which is unlawful under the federal Controlled Substances Act. The term thus includes the use of marijuana for any purpose. For that reason, the ADA should not act as a bar to an employer's discipline of an employee who is using medical marijuana.

Nonetheless, if the medical condition for which marijuana has been prescribed is a disability, a claimant can still be a "qualified individual with a disability" so long as he or she can show an employment decision was made "on the basis of" such disability. For an employment decision citing current marijuana use, this employee would need to show one of the following:

  1. his or her underlying disability was a motivating factor in the employer's decision even if the employer was also motivated by the employee's "illegal use of drugs"; or
  2. his or her "illegal use of drugs" was a mere pretext for discrimination on the basis of his underlying disability

Aside from the ADA, some federal laws require employer testing of employees. The prohibition of marijuana use for any purpose continues to be a mandate of the Drug-Free Workplace Act of 1988 for federal contractors. Additionally, industries regulated by the Department of Defense and Nuclear Regulatory Commission have federally mandated requirements to maintain a drug-free workplace.

The Department of Transportation has similar regulations and has specifically determined that transportation workers may not use marijuana even in states where its use is legal. Every employer also has an OSHA-mandated duty to provide a save workplace. Permitting an employee to work when there is reason to believe his or her judgment is impaired by the use of marijuana may violate that duty.

State Laws

Irrespective of federal law, state laws provide employees varying levels of protection. For example, the supreme courts of California and Oregon have held that their state laws merely protect medical marijuana users from state prosecution, not from employment discrimination. A bill to add employment protection to the California law was passed in 2009, but was vetoed by the governor.

However, other states have more protections. In Colorado, for example, the right to use medical marijuana is enshrined in the state's constitution. Further, Colorado, like several other states, has a "Lawful Off-Duty Statute" that prohibits employers from disciplining employees for off-duty legal conduct. Michigan, home of the Battle Creek Wal-Mart, prohibits any business from denying "any right or privilege" from a medical marijuana user. However, even in states that provide some level of employee protection for medical marijuana use, there is no protection for the employee who shows up to work under the influence.

Recommendations

Employers can take several steps to minimize the risk of an employee lawsuit for negative employment actions related to the use of medical marijuana while maintaining a drug testing policy.

  1. Make sure the drug testing policy clearly prohibits the use of any drugs and other controlled substances that are illegal under federal or state law
  2. When faced with an employee believed to be under the influence of a drug, document the facts that demonstrate the suspicion. It is far easier to defend a termination based on working under the influence than it is for a positive test.
  3. If you are in a federally regulated industry such as transportation, make reference to that fact your policies and in any disciplinary or other negative employment actions you take. Federal law will trump any stronger state protections.
  4. If you are not in a federally regulated industry, consider whether the potential state law exposure is worth the benefits derived from a random drug testing policy. You may be better off instituting a policy that allows for accommodation of medical marijuana users who have valid prescriptions and who will not be under the influence at work.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Eric B. Martin
 
In association with
Related Video
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.