Drug Testing Policies. You’ve always been advised to add one to your company handbook, perhaps to lower on-the-job injuries, or to employ and retain a more stable and productive workforce. It’s your business, you should have the right to maintain a drug-free workplace – what’s the big deal?
Usually, there is no issue until an employee produces a medical marijuana card. It is at this time that an employer asks the question, “Can I fire an employee if they have a valid marijuana card?”
The answer: It depends on the state.
This topic will only become more relevant as more states pass marijuana use laws.
Case in point, your favorite, long time, highest performing employee gets hurt on the job. He picked up a box of client files and pulled a muscle in his back. Per company policy this employee is required to be drug tested post-accident. The test comes back positive. The employee states he has smoked marijuana during off duty hours for complications brought on by glaucoma and carries a valid medical marijuana card.
For starters, the employee feels obligated to tell you about protected medical information he would have never had to divulge had he not been drug tested. He is being questioned regarding off-duty personal activity. He possess a medical marijuana card that has been issued by the state. In addition, he is the highest revenue generating employee on your sales team.
Your policy has put you in a position that requires you to take adverse action, since it is a zero tolerance policy. It requires that any positive test results will lead to immediate termination.
How do you handle this situation?
Most employers ask themselves these three questions:
• Does the Medical Marijuana Card prohibit me from terminating this employee?
• Can I make an exception in this case?
• What do I do going forward?
First let’s start with what you are required to do by law. Employers are legally required to comply with drug testing requirements set forth by the Department of Transportation. In addition, certain federal contractors are required to comply with the Drug-Free Workplace Act. While the Drug-Free Workplace Act does not require alcohol or drug testing, retaining an individual who produced a positive test result may undermine the good-faith effort requirement to maintain a drug-free workplace.
Outside of these considerations, employers can then decide if they want to drug test and under what circumstances. Some states allow drug testing, others are silent, and some have great restrictions, as in California.
After an employer determines that drug testing is allowable, the next factor to consider is whether adverse action can be taken based on positive results.
Currently federal law considers any marijuana use illegal, including use for medicinal purposes. Even if state law allows use for medicinal purposes, most states offer protections from criminal prosecution, not adverse employment actions. Federal and some state court decisions have supported an employer’s decision to take adverse action based on clearly written policies that provide advance notice to employees of drug testing procedures and ramifications of testing positive, even if an employee possess a valid medical marijuana card.
In efforts to minimize conflicts, some states have included employment protections in their marijuana use laws.
For example, Arizona law states:
Unless a 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.
2. A registered qualifying patient’s positive drug 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.
Other states that have similar employment protections, include Connecticut, Illinois, Rhode Island, Delaware and Maine.
It is important to recognize that even these protections do not condone the use or possession of marijuana while on duty.
One more aspect to consider? Discrimination complaints. Not taking adverse action on one employee, but terminating another who tests positive for marijuana can open an employer up to potential discrimination claims. Consistency is the key to lowering exposure. Furthermore, employees who carry medical marijuana cards may have an underlying disability that is covered under the Americans with Disabilities Act or other state disability protection laws. Employers should always ensure they can effectively demonstrate that any adverse action taken is based on drug policy violation, not a disability.
Check your state marijuana use law for employment protections. Also review your state drug testing laws to ensure your policy is compliant and sound. Determine if DOT or federal contract requirements apply to your business. Review your policy and consider all potential scenarios that can arise and decide how you want to handle them in the future. Your policy should reflect your practice. Remember, if you are going to allow your favorite employee to continue employment after testing positive, you will have to do the same for all other employees (including your worst). Finally, with more and more states allowing marijuana use for medicinal and recreational use, determine if taking adverse action for positive test results will limit your ability to hire and retain employees.