YOU CAN DRUG TEST EMPLOYEES IN MEDICAL MARIJUANA STATES – BUT IT’S IMPORTANT TO DO IT RIGHT

Are you an Employer who breaks out into a cold sweat or get the jitters if an Employee or Prospective New Hire you are about to drug test tells you that they have a prescription for Medical Marijuana?  As suppliers of drug tests, we understand your possible stress.

When we started this blog, it was going to address a recent Federal ruling where the judge in a U.S. District Court in New Jersey ruled that a business does not have to waive its mandatory drug testing policy for employees with legally prescribed Medical Marijuana. The judge also ruled that employees are not protected from workplace punishments for using medical marijuana, unless state law explicitly includes protections for those situations.  New Jersey law has no explicit employment protections for approved Medical Cannabis users.

So much for a Federal ruling being applicable in all states! About two months later, a Federal Judge handed down a decision in Connecticut finding an employer guilty of hiring discrimination by rescinding a job offer for a prospective job candidate who tested positive on a Marijuana test and indicated she was legally taking Medical Marijuana.  This was because Connecticut has anti-discrimination provisions in its Medical Marijuana laws.

In both cases, the employers were attempting to follow Federal guidelines for Drug Testing.  In New Jersey, the employee was in a safety sensitive job governed by Federal testing requirements, and in Connecticut, the job involved a nursing home that received Federal funding that might be lost if they had employees who tested positive for drug use.

Further confusing things is that a few states that have legalized Medical Marijuana, have legal cases on the books that have allowed Federal law to prevail instead of state law.

These cases pinpoint the main factors that need to be considered when testing employees who have legitimate prescriptions for Medical Marijuana in the state they live in, as well as perhaps some legal allowances for “out of workplace” legal usage in some states.

WHY IS THIS CONFUSION HAPPENING?

THE PROBLEM IS THAT THE FEDERAL LAW AND MOST STATE AND LOCAL LAWS AREN’T IN AGREEMENT.

The Federal Controlled Substances Act (“CSA”) still lists marijuana as an illegal, Schedule 1 substance – one that the federal government has formally declared as having no “currently accepted medical use” and a high potential for abuse. In January 2018, the current Administration announced the rescission of the prior Administration’s policy that the federal government would not interfere with states’ laws and enforcement schemes regarding Marijuana use. Federal bills that would allow veterans access to medical marijuana through Veteran’s Affairs or allow banks to work with cannabis businesses, have failed in Congress. However, more confusion reigns since the President recently announced that he supports states’ rights to decide for themselves about Marijuana legalization, which seems to be the opposite of the Administration’s announced policy.  And, no formal changes have been made in Federal law and Drug Testing Policy for some workplace testing programs.

On the flip side, 33 states plus Washington, D.C., Puerto Rico and Guam have Medical Marijuana laws on their books, 15 states have approved low-THC-level products for medical reasons in certain cases, and 10 states and Washington, D.C. have legalized adult, recreational use of Marijuana, with some limits on the amount and location of use.

While the Federal government and the states discuss any possible resolution of the laws, issues that arise in court generally are triggered by laws in 9 key states that have legally banned employment discrimination against Medical Marijuana users who are in compliance with the law in the states in which they work.These 9 states are Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York and Rhode Island. In addition, some other states have more vague state laws construed to protect individuals from discrimination based on other applicable factors, such as a disability or “lawful” out-of-work conduct (for either Medical Marijuana or recreational Marijuana not used while on the job).  Still, in some of the cases even in these states, Federal law could prevail, despite the employment discrimination provisions in the state law, showing that sometimes the decision is simply in the hands of the specific court, which often allows priority for Federal law. If you are an employer in the 9 states with anti-discrimination laws related to Medical Marijuana use, it would be advisable to review the laws and court cases carefully when setting up your drug testing program, and all employers should review their state laws to address any other mentions of protection from discrimination based on other factors such as disability or “lawful” out of work conduct protections. In particular, the provisions of the Americans with Disabilities Act should always be met in any drug testing program.  Seeking Legal counsel is always advised.

HOWEVER, THE FEDERAL GOVERNMENT AND ALL STATES STILL UPHOLD AND MAINTAIN AN EMPLOYERS RIGHT TO DRUG TEST AND TAKE ACTION AGAINST A POSITIVE DRUG TEST.

Despite all the confusion caused by legalization of Medical Marijuana, employers are still able to legally Drug Test and hire and fire based on a positive Marijuana test if they follow the laws within their state for the following reasons:

  • Federal law still says Marijuana/THC is illegal and many employers are expected to maintain a Drug-Free workplace.
  • There is no consistent application of the laws in court cases involving Medical Marijuana, with many courts often applying the Federal law when state laws are mute on specific anti-discrimination in employment clauses, meaning the case is often found in favor of the employer.
  • Federally mandated drug testing programs are required for certain key or safety sensitive positions (e.g., under Department of Transportation regulations), and these programs have long -proven their defensibility and shown employee privacy protections.
  • According to most legal analysts, states do no generally protect an employee from termination if the employer stands to “lose a benefit under federal law,” such as a license or funding.
  • In states that do not have specific statutory prohibitions on the termination of an employee for the legal use of marijuana, claims of discriminatory firing generally fail.
  • None of the current marijuana laws permit employees to possess or use marijuana at work or work while under the influence of marijuana. As a result, regulating workplace marijuana use is within the rights of employers in every state.
  • No state currently provides explicit employment protections for the impact of legal off duty recreational marijuana use on job performance and at work Drug Testing.
  • In states where statutes are silent on medical Marijuana use in relation to the Americans with Disabilities Act, courts have generally determined that employers are not required to accommodate Medical Marijuana use under the ADA and even where they must accommodate the use, the employee must prove supervision by a licensed health care professional, with the drug covered by a valid prescription.
  • Companies have a legal liability to provide a safe work environment as well as to protect the public from harm by some action of their employee in the line of duty.As a result, they should Drug Test to protect their workers and customers.
  • Many companies are subcontractors or have contracts which require drug testing in order to fulfill the contract. Additionally, many companies have become socially conscious of the serious harm of drug and alcohol abuse for their own employees, as well as the impact of drug abuse on work performance and absenteeism.
  • Many insurance policies and worker’s compensation policies won’t provide insurance, disability or death benefits to intoxicated or drug impaired employees, although a few states allow coverage related to Medical Marijuana treatment, with clear proof of care by a licensed health care professional and a prescription.
  • Almost every state has employment “at will”, which means that absent any contractual protections, an employer can terminate an employee for no reason at all, if there is not a known and proven illegal reason. So careful employers will generally consider their actions before they speak and act regarding termination or non-hire. Some analysts believe the “at will” factor works in favor of employers in states that do not have anti-discrimination clauses in their Marijuana legalization statutes.
  • Employers can verify and question test results, even when an approved Medical Marijuana authorization is claimed, but they should seek proper legal advice. When a presumptive positive drug test occurs on a drug test done on an individual claiming to have a medical approval for use of Medical Marijuana, careful review of the situation has been authorized since some usage violations have been reported and some workplace problems or accidents may have triggered a concern.

Medical Marijuana varies from Recreational Marijuana sold on the street.  Often Medical Marijuana may be referred to as CBD or low dose cannabis.  The Medical product contains both some (1)Tetrahydrocannabinol, or THC, whichis the psychoactive compound in marijuana — i.e. the element that produces the high – and (2) Cannabidiol, or CBD.This substance does not produce any psychoactive effects. Medical marijuana has a higher CBD content; so, when someone is taking it, they don’t feel the euphoria that’s associated with its recreational counterpart and are often less likely to have a work-related issue.  It also may be less likely to trigger a positive drug test result, which is based on the THC cutoff level.Conversely, Recreational Marijuana usually has more THC content than the medicinal variety.

Reported industry information addressing commentary from labs regarding tests involving presumptive positive results where employees state they have medical approval to use Medical Marijuana, have sometimes reflected higher levels of THC drug presence in the specimen than would be common for Medicinal Marijuana. In fact, some Medical Marijuana products may have been sold with improper amounts of standard illicit Marijuana mixed into them perhaps without customer awareness, but some positives may occur from usage of standard Recreational Marijuana instead of the prescribed Medical Marijuana. Thus, an employer can question a positive THC Drug Test result, especially using appropriate legal follow-up procedures such as a lab confirmation and MRO/Medical Review Officer review of a lab identified cutoff level of positive test results in comparison with state legal allowances.  If the cutoff levels appear out of approved range, the MRO then can further research the situation and determine if the candidate might have been approved for a higher dosage of THC for severe pain or other issues, or if a seller has provided tainted product or if the candidate has used the medical approval improperly and bought non-authorized product.  This information may be crucial to the employer to know where a workplace safety event has occurred and corporate liability may be involved.

HERE’S HOW TO PROTECT YOURSELF AND YOUR DRUG TESTING PROGRAM

Two Key Principles to Follow

Since similar legal cases seem to indicate that each case is often determined by the actual judge or court of review in different ways, there are two key principles that are foremost in protecting your Drug Testing program legally:

  1. Federal Law still says the use of Marijuana is illegal and doesn’t technically recognize state laws on Medical Marijuana usage or recreational usage. So, know the Federal law and the specified testing programs which may apply to your business, such as Department of Transportation or OSHA requirements.
  2. Know and follow your State laws regarding legalized use of Marijuana and related Drug Testing rules and restrictions. If you aren’t sure about your State laws, a good place to start familiarizing yourself may be on the National Conference of State Legislatures’ webpage ( http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx)

You should also read the summaries on some of the court cases in your state to determine consistencies in how any legal cases are determined.  Check periodically to make sure the laws haven’t changed.

Keep in mind, this may involve following different state laws for each company division or location in different states, and you should also verify that there aren’t any “surprise” local regulations that also apply to employment rules.

By following both the Federal and State procedures and regulations as best as possible, you will most comprehensively avoid any unintentional and difficult problems and demonstrate a sincere intent to follow the letter of the laws, even if they are conflicting.

Other Proactive Protective Actions 

  • Keep Marijuana in your Drug testing program. Although current ideas tend to try to classify Marijuana usage as benign, statistics still reflect accidents and workplace problems occurring while individuals are impaired by certain levels of Marijuana usage. Remember that you are responsible for providing a safe workplace for your employees.
  • Be prepared.As marijuana is legalized, usage has increased. For example, after marijuana was decriminalized in Colorado, the number of positive workplace drug tests increased by 20 percent between 2012 and 2013, compared to a national average increase of five percent.
  • Prepare and publish your written policies and protocols for employee and new hire Drug Testing about Medical Marijuana and Recreational Marijuana usage. Show how they reflect the current laws.  Doing so gives employees and supervisors fair advance notice as to expectations and consequences.  It can protect you legally.
  • Have your employees sign for receipt of the policies.
  • Post all pre-employment practices/requirements on all job publications.
  • Always seek legal counsel for unusual hiring issues related to Medical Marijuana use. Again, you should be aware that you cannot refuse to hire a candidate who you have offered to employ and then triggers a positive for THC on an initial drug test in one of the states that has anti-discrimination hiring legal provisions regarding individuals who have medical approval for use of Medicinal Marijuana.  However, employers often become unnerved when they manage a federally funded program that has Drug-Free Workplace requirements to keep their funding and the prospect advises them that they have approval for Medical Marijuana use — since any Marijuana use is illegal under Federal law.  This issue becomes particularly sensitive if the employer withdraws a job offer or doesn’t hire the candidate when they are drug tested and a positive drug test is reported before the candidate states they have Medical Marijuana approval. The National Attorneys General Training and Research Institute states that you do not have to employ a prospective employee if you know they use Medical Marijuana if you are an employer in a state that does not have anti-discrimination practices. However, you do nothave the right to make an adverse employment decision based on that individual’s underlying condition, and court case decisions can vary by state and case facts.  In this type of hiring case, you should first know all the facts before making any decision, and you must clearly know your state law and seek legal counsel for your hiring decision.
  • Don’t just publish the policies and protocols – follow the actions they outline whenever you have a positive Marijuana drug test result, especially when someone claims they are approved to use Marijuana for medicinal purposes. Don’t just start allowing “passes” for Medical Marijuana claims that result in positive drug test results that don’t agree with the corporate policies.  Morale of all employees is at stake for your company.
  • In locales where businesses have legal latitude about the corrective actions they can take for a positive test result, it is important to consider the ramifications of each allowable action in advance and perhaps only settle on one or two that will work best for the company and your employees. You may need to assert that safety-sensitive jobs at your company cannot be modified to accommodate an employee’s use of Medical Marijuana.
  • Always make sure adverse employment decisions are made based on the individual’s level of use of marijuana rather than based on the underlying medical condition allowing for use of Medical Marijuana, in order to avoid liability under the ADA or a state-specific discrimination statute.
  • Train your supervisors to be alert for signs of any possible issues that might be related to drug or alcohol abuse (reasonable suspicion) in the workplace so it can be addressed in a timely manner and before an accident or problem occurs. By being alert and addressing performance concerns in a timely manner, an accident might be avoided, perhaps not even because substance abuse was involved, but for other issues such as serious illness that might create traits that look like possible substance abuse.

There is no doubt that the courts will continue to address assorted issues related to the legalization of Marijuana uses when employers don’t educate themselves on the law.  Drug Testing helps employers create a more productive and safer workplace.  If you educate yourself on your state’s laws, periodically check on any new changes, and educate your employees as to the law and your corporate Drug Testing policies, you should be able to manage a successful Drug Testing program and avoid or minimize any issues related to the legalization of Marijuana Medical and Recreational uses.

 

Legal Advisory:  Information in this article is general in nature since all State and Federal laws vary with regard to the legal use of Medical and Recreational Marijuana. This article is informational only and does not fully cover provisions in law. This information is not be used as legal counsel or advice. All Employers are responsible for knowing the specific laws within their state and at the Federal level regarding legalized Marijuana use and for seeking appropriate legal counsel in determining their Drug Testing practices, policies, hiring, and employment decisions.