Medical marijuana is now legal in 33 states and the District of Columbia (and recreational use is also legal in 10 of those states, plus D.C.), but marijuana remains illegal under federal law. While employers can prohibit workers from using or being under the influence of intoxicating drugs in the workplace, the line becomes much smokier when the employee uses medical marijuana at home to treat a disability but there is no indication of use or intoxication in the workplace.
Unlike a breathalyzer for alcohol, there is no test that can show whether an employee is under the influence of marijuana at any given moment. Typical drug tests can only show whether an employee has used marijuana in the past 5-90 days.
Two recent cases indicate a possible legal trend that employers cannot terminate medical marijuana cardholders just because a drug test shows a positive result for marijuana.
- An Arizona federal judge ruled against a large retailer that fired an employee for testing positive for marijuana. The employee was a medical cannabis user. The judge noted that the Arizona Medical Marijuana Act specifically protects medical marijuana users who test positive for the drug so long as they are not using, or impaired by, marijuana at work.
- A New Jersey appeals court revived a funeral director's case against the funeral home that fired him after he tested positive for marijuana. Again, the employee had a prescription for medical marijuana. Even though New Jersey's medical marijuana act does not expressly require employers to accommodate medical marijuana use (i.e. by ignoring a positive drug test), the court found that the New Jersey Law Against Discrimination may require employers to accommodate medical marijuana users as individuals with disabilities.
The following medical marijuana laws show a patchwork of state laws that are, at times, confusing and contradictory:
- Eight states have laws protecting an employee from discrimination based on his/her status as a medical marijuana cardholder and/or designated caregiver: Arizona, Arkansas, Connecticut, Illinois, Maine, Minnesota, Oklahoma, and West Virginia.
- Nine states make clear that any requirement to accommodate users of medical marijuana (i.e. by ignoring a positive drug test) is waived if doing so would cause the employer to violate federal law or risk federal funding: Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Oklahoma, and Pennsylvania.
- In at least three states, it is okay to terminate an employee for failing a drug test, regardless of whether that employee is a certified medical marijuana user. Georgia law specifically allows employers to prohibit off-duty medical marijuana use and/or prohibit employees from having any detectable amount of marijuana in their systems. The supreme courts of California and Colorado have both held that penalizing medical marijuana users for positive drug tests is allowed.
- At least four other states say the exact opposite: employers in Arizona, Delaware, Minnesota, and Oklahoma may not penalize medical marijuana users for positive drug tests, subject to the federal law exception described above. Additionally, New York recognizes medical marijuana users as having a disability under New York's Human Rights Law, which may require employers to make reasonable accommodations or exceptions to their normal policies. This week the NYC Counsel passed legislation that will prohibit employers from requiring pre-employment testing for marijuana.
So, what does this mean for your business? It depends on where you are located and the nature of your industry! State and local laws range from medical marijuana being completely illegal to requiring legal protections for medical cardholders. Multi-state employers should be especially careful to comply with local requirements.
If this patchwork of contradictory laws seems overwhelming or just plain confusing, remember: we are here to help!► Back to News & Resources