Marijuana use has always been a concern in the workplace, but the recent changes in states’ laws have created new challenges for both employers and employees. States have begun to decriminalize marijuana and permit its use for recreational and medicinal uses. However, it is still illegal under the federal Controlled Substances Act (CSA) as a Schedule I substance.
Because it has historically been criminalized, employers include marijuana in their drug testing for new employees and any random or “for cause” testing. The states that have legalized marijuana have not prohibited such testing for marijuana. Historically, positive tests for marijuana have resulted in terminations or revoked offers. However, some of the states legalizing marijuana now prohibit employers from terminating an employee for legally using marijuana or prohibit employers from terminating or rescinding a job offer solely for a positive marijuana test.
Nonetheless, the majority of states, even some that have legalized marijuana use, still allow employers to terminate employees for testing positive for marijuana. Thus, in those states, any employees testing positive for legally taken marijuana must look to disability laws for protection. However, even though the ADA covers some medical conditions for which physicians prescribe medical marijuana as a treatment, the ADA has a specific exemption for drugs that are illegal under federal law from its protections. Thus, these employees taking medical marijuana have to rely on state disability discrimination laws for protection. Of course, such use of these laws is just beginning.
Thus, until the contours of state disability law protection of legal medicinal marijuana are defined, marijuana in the workplace is going to be a challenge for employers and employees. Furthermore, as long as it prohibited by federal law and is tested for by employers, use of it, even for medicinal purposes, can be risky for employees.