Employers walk a legal tightrope when confronted with candidates for job vacancies who test positive for marijuana.
Their dilemma has been created by the federal government’s anti-weed stance and the contradictory regulations that have been introduced by state governments which have legalized pot.
Employers are therefore faced with a Catch 22 situation when wanting to appoint a qualified candidate who screens positive when undergoing a drug test.
Currently, there are 29 states (and the District of Columbia) that have legalized medical marijuana but others, like Pennsylvania, are only now beginning to “explore the complicated world of medical cannabis and its many tentacles”, says Denise Elliott, a labor and employment law attorney.
Elliott says there is no straightforward answer to the frequently asked question regarding medical marijuana and drug testing policies. Instead, she says, the answer revolves around two aspects:
- State law regarding medical marijuana
- Company policy regarding the workplace and medical marijuana
Federal law clouds the issue
But, says Elliott, it is the federal law that continues to cloud the issue because marijuana remains illegal with its Schedule I drug classification. The implications of this attitude are significant when taking into consideration the fact that the federal government controls funding for companies such as transportation, colleges and community health centers.
Illustrating her point, Elliott refers to the Department of Transport’s (DOT) “Medical Marijuana Notice” issued last fall in which it was made clear that despite any existing state laws the use of medical marijuana “does not constitute a legitimate medical reason” to test positive in a drug test. Furthermore, the notice dismissed medical marijuana as a reason to test positive for drugs, adding that its usage remained “unacceptable”.
DOT’s notification made it clear that pot, in all its forms, remains illegal in terms of the Controlled Substances Act (CSA) approved by the federal government way back in 1970. According to the CSA, Schedule I drugs (like marijuana) are classified as:
- Having a high potential for abuse
- Having no accepted medical use
- Are unsafe for medical use under supervision
Pennsylvania and medical marijuana
In terms of Pennsylvania state law, employers cannot discriminate against employees who are medical marijuana users. Instead, Pennsylvania employers are instructed to assess the ability of a member of staff “to safely perform” the functions demanded by the job.
Pennsylvania’s medical marijuana law allows employers to:
- Ban the use of medical marijuana on company premises
- Discipline employees under the influence of medical marijuana
- Restrict employees from performing certain jobs involving safety elements while under the influence of medical marijuana
Elliott advises employers faced with the burden of walking the tightrope between federal and state law to consider:
- If they receive federal government funding and how that will impact on their workplace drug testing policies
- Company policy regarding medical marijuana usage
- The company’s existing drug testing policies and whether these should be revised
- Existing state laws regarding the use of medical marijuana
- Whether those laws allow employers to regulate medical marijuana use
Elliott also suggests that employers seek legal advice and not wait until they are faced with making a decision if an employee tests positive for marijuana use.
Elliott refers to the Rohrabacher-Blumenauer Amendment that“prohibits the U.S. Department of Justice (DOJ) from using federal funds to prevent state implementation of medicinal marijuana laws.” When interpreted, this amendment disallows prosecution by the federal government of any medical marijuana patientwho has complied with the marijuana laws of the state in which he/she resides.
The Americans with Disabilities Act (ADA) protects “qualified individuals with a disability” but, at the same time, states that anyone “currently engaging” in the illegal use ofdrugs is not a “qualified individual with a disability.” In other words, the ADA fails to protect medical marijuana patients, even if that person complies with all the laws of the state in which he/she resides.