Medical Marijuana and Employer Drug Testing Collide

Residents in 14 states plus DC are able to obtain prescriptions from their doctors for medical marijuana to deal with pain. Only the law in Rhode Island, however, prevents employers from firing employees who use medical marijuana. In the other states, there’s a big gray area when it comes to employers’ use of their drug testing policies to terminate an employee who tests positive, despite a doctor’s prescription.

Those who argue that employers shouldn’t be allowed to fire employees for using marijuana in marijuana-friendly states emphasize that these laws don’t require employers to fire employees who use marijuana with a doctor’s prescription. Except in Rhode Island, however, these laws don’t say an employer can’t fire these employees when they test positive in a drug test administered by the employer.

For quite a while, the law has been clear that employers have the right to fire employees who test positive for drugs. But it doesn’t make sense, say medical marijuana supporters, that an employer can fire an employee who is using prescribed marijuana, regardless of what an employer’s drug testing policy says.

That sounds good in theory, but in the real world, it’s not that simple. Employers will be treating employees who use marijuana inconsistently, something that’s long been taboo in the drug testing arena. Moreover, employers that have multiple operations in a large number of states are faced with the ordinarily untenable position of treating employees in one state differently from those in another state.

Perhaps one day, we’ll have a federal law that brings some uniformity to this issue. Until then, before firing an employee using prescribed marijuana in a state that sanctions it, get some legal advice to make sure you know what the courts in your state or states are doing in this kind of case.

1. 

   Carol says:

   September 13, 2010 at 10:37 am

   Might a solution be for the lab to screen out legally prescribed marijuana use in the same way they screen for other sometimes-misused drugs – e.g., test detects Oxycontin, if person has a legitimate Rx, result is “negative”; if no Rx, then it is “positive”.
2. 

   John Phillips says:

   September 13, 2010 at 11:23 am

   Carol,

   Thanks for your comment.

   Your suggestion might well be an answer. However, the difference between marijuana and other sometimes-misused drugs is that marijuana is illegal. It seems to me that in states where medical marijuana is allowed, a law like the one in Rhode Island would clear things up.

   Thanks again.

   John