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Federal law still considers marijuana illegal, and it is exempt from positive drug-testing protection under the ADA.  For many years, arbitrators and courts allowed employers to terminate employees who tested positive for marijuana, even in medical marijuana situations.  Since 2017, however, the situation has become more confusing.

Courts in at least four states have indicated that employers potentially violate state law by disciplining employees with positive marijuana tests in the case of medical marijuana.  The first state was Rhode Island in 2017, and now the states have expanded to include Delaware, Connecticut, and Massachusetts.  The number of states in this category could expand further, as some 13 states have anti-discrimination provisions in their laws specifically for medical marijuana patients, and many other states have laws protecting lawful off-duty activities against employer retaliation.  Some 32 states and Washington, D.C., now allow medical marijuana, and some states have legalized recreational use.  There is a question whether the "lawful activities" state statutes affect a worker for failing a positive medical marijuana test, since medical marijuana may not qualify as a lawful activity because it is illegal under federal law.   On the other hand, these state law issues do not appear to be as big a problem when there is federally mandated drug testing, such as the U.S. Department of Transportation (DOT) requirements of testing for workers who operate commercial vehicles.  Even in DOT testing situations, a plaintiff might argue that it is possible for an employer to test for marijuana and yet allow some sort of accommodation to a medical marijuana user.

The employer community is confused concerning these developments, which are particularly complicated in the case of multi-state employers.  Because of the legal issues as well as a shortage of workers, some companies have discontinued testing for marijuana or only testing employees in safety-sensitive positions, or have provided job accommodations for medical marijuana patients.

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