Medical Marijuana and Employment Drug Screening

Employers recognize the need to proactively detect and eliminate problematic behaviors before they cause disruptions in the workplace.

Cover imageWith an eye on maximizing employee and workplace safety and minimizing the risks associated with impaired human capital, companies have traditionally accepted a zero-tolerance drug-free workplace policy as the safest and most obvious solution. However, the recent surge in state laws allowing patients to legally access marijuana for medicinal purposes has resulted in a growing area of concern and uncertainty for human resources departments—determining whether a company can discharge an applicant or employee who tests positive for marijuana but provides the company with a valid medical marijuana prescription has become increasingly challenging for employers given the fragmented legal landscape.

First, it is important to recognize that there are no clear-cut answers on this issue given the changing nature of the law in this area. Nonetheless, given the current legal landscape, the answer to this question will depend on several factors, including whether the employer or position is federally regulated and whether the state has adopted a medical marijuana law that protects employees who lawfully use medical marijuana. The issue may be more straightforward when the position in question is subject to safety standards imposed by a federal regulation or when the state at issue does not have a medical marijuana program in place. The answer is also fairly straightforward when a state’s medical marijuana statute explicitly states that employers have no duty to accommodate an applicant’s or employee’s use of medical marijuana.