>>> When a Rhode Island Superior Court judge ruled in favor of the individual who was refused employment after disclosing her she had a medical marijuana card, all ears started listening. This is the first case of medical or recreational marijuana and employment where we have seen the court rule in favor of the marijuana user.
A decision her lawyer calls discrimination, the employer refused to hire a graduate student for a two-month internship because she uses medical marijuana to treat frequent and debilitating migraine headaches. Christine Callaghan vs Westerly-based Darlington Fabrics Corp.
The question that is not clear to me is did the company have a written drug free workplace policy and did the company require a pre-employment drug test of the applicant and then refuse to hire based on the positive drug test for marijuana; or did the employer deny employment simply based on the information provided that the individual held a medical marijuana card. It is an important question.
If the company decided not to hire the individual based on her status as a medical marijuana patient, then I believe this is a problem and employers should tread careful in making these kinds of decisions. Additional issues can occur for the employer when the individual is now potentially disclosing her medical condition to the employer.
The Rhode Island case will be appealed and one to watch carefully as employers tackle issues with medical and recreational marijuana. Suits have been filed in other states including New Mexico, Maine, Colorado and New Jersey.
Employers beware – have strong drug free workplace policies and follow them carefully. If testing for marijuana is part of your policy, do so; but do in strict compliance with your drug free workplace policy. If your policy does not address medical and recreational marijuana then a policy revision or new policy is absolutely needed.
Consider these important points regarding legalized marijuana:
- Both historically and currently, drug and alcohol testing and drug free workplace programs are based on tests for illicit and illegal drugs that can cause workplace issues such as problems with productivity and decreased safety. Marijuana should not be an exception.
- Marijuana use is up nationwide and particularly in States with recreational marijuana laws such as Colorado and California.
- Some of the states that have legalized medical or recreational marijuana have specifically addressed workplace drug testing in their statutes. Always seek advice about the laws in your State.
What can employer do about medical and recreational marijuana?
Because marijuana is a confusing issue for employers, employees and job applicants, the best way to avoid the confusion is to have a zero-tolerance drug free workplace policy in place that is not based on “impairment” or the fact that someone has a medical marijuana card; but rather is a simple and strict standard of no use. This is called a zero tolerance standard. Any positive drug test is evidence of a violation of the employer’s drug-free policy, with no necessity of showing impairment. The goal of these policies is to help prevent impairment in the workplace which will provide for productivity and safety.
Every employee must be informed of the company’s substance use policy and the reasons for the policy. Drug testing needs to be described in a written statement of the employer’s substance use policy. This policy statement must clearly lay out the components of the drug testing program including who is subject to testing, how testing is administered, how positive results are confirmed, and what the consequences are for positive drug test results. HR management and staff along with supervisors should be trained in the employers’ substance use policies and procedures and should be able to explain them to all employees and job applicants.
Review carefully your drug free workplace policy today and call National Drug Screening for assistance in revising or implementing a new drug free workplace policy to address the complex issues of medical and recreational marijuana so you can better protect your company.