How Medical Marijuana Laws Affect Employee Drug Testing Policies
Campuses still have the right to require their employees to abstain from pot.
Although California’s Proposition 19, which would have decriminalized marijuana for general use, was defeated in the November election, there still are 15 states (including California) and the District of Columbia that have legalized medical marijuana for use in treating conditions ranging from AIDS to post traumatic stress disorder. Additionally, in 2009, the U.S. Department of Justice (DOJ) instructed U.S. Attorneys in those states to not focus federal resources on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
These developments may cause confusion among campus officials who wish to bar individuals who smoke medical marijuana, even recreationally, from working in safety-sensitive positions, such as school bus drivers and armed security personnel. According to HireRight’s Director of Medical Services Dr. Todd Simo, however, hospitals, schools and universities may still deny employment to individuals who test positive for pot, even if the use of medical marijuana is legal in the state where they live and they have a doctor’s recommendation for its use.
“There is plenty of case law, particularly in California, where the California Supreme Court says the employer has the right to disqualify a person under its drug-free workplace program from using medical marijuana,” he says.
Schools, universities and hospitals might also be able to take their cues from the U.S. Department of Transportation (DOT), which has stated in no uncertain terms that the DOJ’s 2009 guidelines will have no bearing on the DOT’s regulated drug testing program.
“The DOT’s drug and alcohol testing regulation… does not authorize ‘medical marijuana’ under a state law to be a valid medical explanation for a transportation employee’s positive drug test result,” the agency stated in an Oct. 26, 2009 bulletin.
Employer Policies Can Ban Medical Marijuana
The confusion for employers and employees alike revolves around not whether medical marijuana is legal in a particular state, but whether an employer can require its employees to abstain from it, says Jerry Stewart who is director of drug and health services for HireRight.
“People may think it’s perfectly appropriate if they have been recommended to use medical marijuana,” he says. “They may not need to worry about it in terms of criminal prosecution, but in terms of the workplace, they still need to be concerned about employer policy. They need to understand and appreciate what the policy for the use of drugs and medical marijuana is in the workplace so they can gauge their activities appropriately.”
Policies Must Be Clear and Nondiscriminatory
“Employers should notify applicants of the fact that they’ve got a medical marijuana policy relating to their position and what will be the disciplinary action,” he adds. “[The employer] must include clear information about their position on medical marijuana use. They must take care as to how they make decisions under that policy; that it is nondiscriminatory and that it doesn’t conflict with some other labor or employment law related to the use of medical marijuana.”
Stewart says employers often will have a couple of different policies, depending on the nature of the employee’s job. If the position is safety related, the policy may be very strict. For other non-safety duties, the policy may be more lenient.
Some employers may want to carve out exceptions for medical marijuana so employees with the proper authorization can use it.
Another option for employees who must use medical marijuana is for their doctors to prescribe Marinol (Drohabinol), which is medical marijuana or THC in a pill form, says Simo. “That is a Schedule III medicine that is verifiable, legal and prescribed,” he says. “If a doctor thinks medical marijuana is the right choice [for his patient], he can prescribe Marinol. It is a verifiable medical explanation for a positive drug screen.”
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