There is none. The federal government and all states still uphold and maintain an employer’s right to drug test and take action against a positive drug test. Despite all the confusion caused by the legalization of medical marijuana, employers are still able to legally drug test, hire, and fire based on a positive marijuana test if they follow the laws within their state for the following reasons:
- Federal law still says marijuana/THC is illegal, and many employers are expected to maintain a drug-free workplace.
- There is no consistent application of the laws in court cases involving medical marijuana, with many courts often applying the federal law when state laws are mute on specific anti-discrimination in employment clauses, meaning the case is often found in favor of the employer.
- Federally mandated drug testing programs are required for certain key or safety-sensitive positions (e.g., under Department of Transportation regulations), and these programs have long proven their defensibility and shown employee privacy protections.
- According to most legal analysts, states do not generally protect an employee from termination if the employer stands to “lose a benefit under federal law,” such as a license or funding. In states that do not have specific statutory prohibitions on the termination of an employee for the legal use of marijuana, claims of discriminatory firing generally fail.
- None of the current marijuana laws permit employees to possess or use marijuana at work or work while under the influence of marijuana. As a result, regulating workplace marijuana use is within the rights of employers. No state currently provides explicit employment protections for the impact of legal off-duty recreational marijuana use on job performance and at-work drug testing.
- In states where statutes are silent on medical marijuana use in relation to the Americans with Disabilities Act, courts have generally determined employers are not required to accommodate medical marijuana use under the ADA, and even where they must accommodate the use, the employee must prove supervision by a licensed health care professional, with the drug covered by a valid prescription.
- Companies have a legal liability to provide a safe work environment as well as to protect the public from harm by some action of their employee in the line of duty. As a result, they should drug test to protect their workers and customers.
- Many companies are subcontractors or have contracts that require drug testing to fulfill the contract. Additionally, many companies have become socially conscious of the serious harm of drug and alcohol abuse for their own employees, as well as the impact of drug abuse on work performance and absenteeism.
- Many insurance and worker’s compensation policies won’t provide insurance, disability, or death benefits to intoxicated or drug-impaired employees, although a few states allow coverage related to medical marijuana treatment, with clear proof of care by a licensed health care professional and a prescription.
- Almost every state has employment “at-will,” which means, absent any contractual protections, an employer can terminate an employee for no reason at all if there is not a known and proven illegal reason. Careful employers will generally consider their actions before they speak and act regarding termination or non-hire. Some analysts believe the “at-will” factor works in favor of employers in states that do not have anti-discrimination clauses in their marijuana legalization statutes.
- Employers can verify and question test results, even when an approved medical marijuana authorization is claimed, but they should seek proper legal advice. When a presumptive positive drug test occurs on an individual claiming to have a medical approval for the use of medical marijuana, careful review of the situation has been authorized since some usage violations have been reported, and some workplace problems or accidents may have triggered a concern.
How to Protect Yourself and Your Drug Testing Program: Since similar legal cases seem to indicate that each case is often determined by the actual judge or court of review in different ways, there are two key principles that are foremost in protecting your drug testing program legally:
- Federal law still says the use of marijuana is illegal and doesn’t technically recognize state laws on medical marijuana usage or recreational usage. Know the federal law and the specified testing programs which may apply to your business, such as DOT or OSHA requirements.
- Know and follow your state laws regarding legalized use of marijuana and related drug testing rules and restrictions. If you are not sure about your state laws, a good place to start familiarizing yourself may be on the National Conference of State Legislatures’ webpage (www.ncsl.org/research/health/state-medical-marijuana-laws.aspx).
