Medical Marijuana – The Employer Drug Testing Dilemma

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Employer Best Practices Regarding Medical Marijuana

medical marijuanaRegardless of state law, the Food and Drug Administration (FDA) still classifies marijuana as a Schedule 1 Drug.  This means that marijuana is a substance classified under the Controlled Substances Act (CSA) and included within the schedule.  By definition, these drugs are classified as having a high potential for abuse; no currently accepted medical use for treatment within the United States; lack of accepted safety for use; or other substance under medical supervision.  According to the FDA and under this classification, marijuana can’t be prescribed by a physician.  In fact, in those states which medical marijuana is legal, medical certificates are only issued as a “recommendation” by the physician.

Case law will continue to set precedence as this entire issue unfolds.  In 2008, a California Supreme Court decided that under the Fair Employment and Housing Act, an employer has no duty to “reasonably” accommodate medical marijuana as an explanation for a failed employment drug test.  If an employer decides to accept medicinal marijuana as a reason for a positive drug test result, they should request a proof of that recommendation by the treating physician and attach it to their testing results.  This can be done through a “medical safety clearance letter” and should include a statement from the physician that the donor can safely perform their job duties under the appropriate use of medicinal marijuana.

Each employer should take a hard look at the positions for which they hire and currently conduct substance testing.  They should always contact HR Legal Counsel for additional advice on current state law, and the affect of allowing the use of medical marijuana certificates as part of their program.  Considerations should always center on safety and risk mitigation, along with the long-term effects of employer drug testing programs and drug-free workplace initiatives.

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