As more and more states are legalizing the use of medical marijuana, one of the main questions and concerns for Employers are how new state laws are going to impact the legalities behind terminations due to a positive drug test? The use of marijuana for medicinal purposes is not protected under the ADA since the ADA is a federal law. The Food and Drug Administration (FDA) still recognizes marijuana as a Schedule 1 Drug, therefore does not recognize the use of medical marijuana for legal use. Even if the “drug” is endorsed by a physician an employee is a legitimate card holder, and medical marijuana is permitted under state law, the “drug” is still considered illegal under federal law. With this being said, in the states where medical marijuana is currently legal, employees are not protected from termination by the ADA.
Some states, for example, Arizona and Rhode Island, have written statutory protections for the employees. State courts have not determined whether the provisions provide a private right of action for employees or would require the employers to make accommodations.
Arizona's statute states that "Unless failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: (1) the person's status as a cardholder [or] (2) a registered qualifying patient's positive test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment." Ariz. Rev. Stat. § 36-2813 (2011).
Rhode Island's statute states "No school, employer or landlord may refuse to enroll, employ or lease to or otherwise penalize a person solely for his or her status as a cardholder." R.I. Gen Laws § 21-28.6-4 (2011). However, the chapter shall not permit "[a]ny person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice" or require "[a]n employer to accommodate the medical use of marijuana in any workplace." § 21-28.6-7.
Employers should review their drug testing policies and proceed with caution. Remember marijuana is still considered to be an illegal drug at the federal level even if legal at the state level. The laws are constantly changing and while the future may be a little hazy it is important to review your specific state laws and update company policies accordingly. You would not want your termination decisions to blow up in smoke.
State by State Medical Marijuana Resources
A good resource for current information on medical marijuana is ProCon.org. This non-profit public charity provides a non-biased take on controversial issues with no government ties, and provides additional details on each state, including regulations and laws on the topic.
EBI is committed to providing employers with valuable education and resources on changing legislation, cutting-edge and compliant solutions to meet federal, state, local, and international mandatory requirements. EBI is not providing legal advice or counsel and nothing provided in this publication should be deemed as legal guidance or advice. Readers should consult with their own legal counsel to determine their responsibilities or if they have questions on any information provided by EBI.
Employment Background Investigations, Inc. (EBI) works with employers to customize drug testing programs that are compliant, comprehensive, and cost effective. EBI offers a wide variety of options when it comes to drug and alcohol testing programs, including pre-employment, random, post-accident, and mobile collection options for both Regulated (DOT) and Non-regulated (Non-DOT) testing. With our vast expertise and knowledge, EBI can either help you develop or enhance your drug testing program to meet your specific objectives.