I received a call from a
client two weeks ago who was struggling with a tricky personnel issue on the
topic of drug testing.
Bob, who owns a company in
Vermont and has a policy of mandatory drug testing for all new hires, wanted to
hire a new shift manager for his small manufacturing plant. The problem was that the highly-qualified man
he wanted to hire has a medical marijuana prescription to treat his PTSD.
Bob’s questions were these:
“Can I make an exception and not drug test him?
If I drug test him, can I overlook the flag for positive marijuana
use? If I overlook his use, what do I do
about other future hires? Do I have to pass on him as a candidate because of
his legally-prescribed drug use?”
Bob’s dilemma is
increasingly common as states and local jurisdictions move to legalize pot. To date, 29 states and the District of
Columbia have passed measures to legalize medical marijuana use, while eight
states and the District of Columbia have legalized recreational use. To make matters even more complicated, marijuana
remains a Federal Schedule 1 Controlled Substance
– the most tightly restricted category of substance. Thus, for many employers, all this creates a
point of conflict between federal law, state law and their own company
And that’s not the end of
For employers seeking to
maintain a zero-tolerance, drug-free workplace, navigating these conflicting
requirements just got more complex given a recent high-court ruling in
Massachusetts. In that case, the
Massachusetts Supreme Judicial Court on July 17 ruled that Advantage Sales and
Marketing L.L.C., which fired new employee Cristina Barbuto after her
pre-employment drug screening showed positive for marijuana use, could be sued
under federal handicap discrimination statutes. Ms. Barbuto suffered from Crohn’s disease and used
medical marijuana to stimulate her appetite, according to court documents. The court ruled that allowing off-duty
medical marijuana use constituted a reasonable accommodation for Barbuto’s
So, for employers in
Massachusetts, the decision has the following impact:
· They may not adopt a
“zero-tolerance” prohibition of pot use and must instead attempt to accommodate
use that is: 1) offsite; and 2) certified as medically necessary.
· They may not
terminate or discipline employees solely because of their offsite medical
· They may restrict onsite
medical pot use and do not (yet) need to accommodate offsite recreational use.
While this decision pertains
to employers in Massachusetts specifically, all employers should take note
because there is a growing trend within the courts toward protecting the
offsite legal use of medical marijuana. For
example, in May of this year, a Rhode Island court ruled that employers may not
discriminate against individuals based on their off-work pot use. Another test
will be how the courts view Florida’s new bill that attempts to protect
employers who wish to maintain a drug-free workplace by specifically stating
that they do not need to accommodate the medical use of medical marijuana. That statute is certain to face a court
For employers that wish to
maintain a drug-free workplace, it’s best to be mindful of the court cases in
your state and be sure to craft a clear policy that does not intend to
discriminate against individuals based on their disability. And employers who chose to deny employment or
to discipline or terminate employees based on their medical marijuana use are
strongly encouraged to seek counsel prior to taking action.
Accommodating Medical Marijuana Use
For employers that decide to accept their
employees’ use of medical marijuana, they should:
· Create a well-crafted
policy that clearly articulates what use is allowed and in what form, when use
is authorized (before or after work), whether there are safety sensitive
positions that require special consideration, what medical documentation is
required, and a clear statement that the policy is not intended to discriminate
against individuals with disabilities.
· Require written approval
from the prescribing doctor that includes the legal validation, medical basis,
schedule of use, methods of administration, accommodations or restrictions, and
expected length of use.
· Require employees who
are certified to use medical marijuana to report any changes in the marijuana
product they use, the amount of marijuana they are prescribed, how often they
use it, their schedule of use, and how they ingest the drug.
· Prohibit marijuana use
while an employee is at work (or on the way to or from a job site) unless the
employer is certain that the using worker, coworkers, or the public are not at
risk from any neurocognitive and judgment impairment associated with that
worker’s marijuana use.
Mandatory Drug Testing
Given the quickly evolving
landscape of legal and medical marijuana use, employers should be mindful about
instituting mandatory drug testing of pot.
As was the case in Massachusetts’ Advantage Sales and Marketing case,
denying employment to individuals using medical marijuana can leave you
vulnerable to a claim of discrimination.
Some employers within states
with legal recreational and medical marijuana have simply dropped the drug from
the screening panel. Employers who
maintain marijuana on their drug screening panel are wise to treat positive
marijuana test results with care –rather than enforcing an automatic denial of
employment, discuss the results with the employee, seek to understand the
nature of the individual’s use and consider whether an accommodation is
Finally, no statute or state
laws require an employer to tolerate intoxication or impairment while on the job, particularly if that
impairment can result in injury or harm to the company or its employees. Just as you would do for someone taking
legally prescribed pain killers, if you suspect impairment, be sure to release
the employee from work until he or she is no longer impaired, obtain the
necessary documentation for the prescribed medication, and ensure the
employee’s use is appropriate and conforms to your drug policy.
By Claudia St. John,
President – Affinity HR Group Inc.