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What about medical marijuana and employee drug testing?

- Medical Marijuana and Drug Free Workplace -

Of course federal law still lists marijuana as a Schedule I drug, with no legal use; and courts around the country have upheld employer’s rights to have policies against hiring employees who smoke marijuana.  

The Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for an employee with a disability, even if that person is a registered medical marijuana patient. The Court of Appeals for the Ninth Circuit has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.” Employers do not have to accommodate medical marijuana under the ADA because the ADA defines illegal drug use based on federal law, and so does not protect medical marijuana use.

The U.S. Court of Appeals for the Sixth Circuit has held that “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.”

Courts are supporting employer’s rights to maintain a drug free workplace. So does your company really have a drug free workplace and will your drug testing policy to a law suit involving medical or recreational marijuana?  Employers need to be careful, attorneys advise the following.

  1. Make your Drug Free Workplace policy is in compliance with your State laws on drug testing and regarding discrimination against marijuana users.
  2. Federal regulations must be followed – DOT, ADA and the Drug Free Workplace Act of 1988
  3. Review and update your company drug free workplace – are you prohibiting the use of marijuana – medical, recreational and otherwise.

As each state continue to pass laws and regulations concerning medical and recreational marijuana use, employers will continue to be confronted with the need to comply with increasingly divergent state and federal law. Employers should closely monitor developments in their states and be prepared to periodically remind employees of their expectations and requirements.  Is your drug free workplace policy up to date?