With the growth in the use of medical marijuana and the continuing expansion of synthetic drugs, traditional employer drug-testing policies may need review. Let’s take the pot issue first.
Medical marijuana is now legal in 29 states, but federal law still considers marijuana a Class One drug under Schedule I of the Controlled Substances Act, along with other drugs on this list like heroine and LSD. How does an employer reconcile its drug-testing policies with these potentially inconsistent government policies? Further, what about the Americans’ with Disabilities Act ("ADA"), which requires an employer to accommodate an employee with a disability. And what about the employee at work who is using medical marijuana, should he or she report the use and ask for an accommodation, or in doing so, is the employee risking termination? And what about the situation with union contracts, which require "just cause" for termination?
Further complicating the issue is the fact that very few court cases address and resolve these issues. Nevertheless, let’s review the status of the pending cases and what guidance they provide for answers to the above questions. In the court cases or decisions that have addressed these issues, results are generally supportive of employers. Employers are generally allowed to prohibit marijuana use and impairment in the workplace. Further, if a significant portion of the employer’s business comes from federal contracts, the employers are subject to the Drug-Free Workplace Act of 1988, which requires such employers to prohibit employees from engaging in the unlawful possession or use of any controlled substance. Because marijuana is a "controlled substance" under federal law, federal contractors must comply with the federal law if they wish to continue to accept federal government contracts. Regarding the potential applicability of the ADA, no court has held that the ADA requires an employer to accommodate an employee who uses a drug like marijuana that is illegal under federal law. Similarly, labor arbitrators allow employers to discipline or discharge workers who test positive for marijuana, on the same basis that an employer should be allowed to prohibit a drug that is illegal under federal law.
In an important ruling in July of this year, the Massachusetts Supreme Judicial Court addressed an employee who was fired after telling her employer about her legal marijuana use to treat Crohn’s Disease. The court ruled that the plaintiff raised a potential disability discrimination claim under state law, rejecting the employer’s motion to dismiss the claim. The ruling is not considered a final one, however, but it tends to encourage potential plaintiffs who have experienced adverse employment actions because of their use of medical marijuana under the state laws of certain states. A few states, like Nevada, specifically require employers to accommodate medical marijuana users.
The legal issues are particularly controversial when there is no evidence that the prohibited marijuana use has created an impairment. Showing impairment from marijuana is very difficult if not impossible, since marijuana can be detected in an individual’s system as many as 30 days after usage, and there is currently no reliable test to determine if an individual is impaired by THC, the active chemical in marijuana.
In spite of these uncertainties, most of the case law supports the right of employers to discipline or terminate employees who test positive for marijuana. This conclusion also suggests that employees who disclose their use of medicinal marijuana to their employer are not immune from discipline if they subsequently are chosen for a drug test.
Some employers are reassessing their drug-testing for marijuana. Some medical tests have shown that marijuana is not as debilitating in terms of affecting skills such as driving an automobile, and most believe marijuana is not as dangerous as many other drugs. Further, marijuana remains in the system for such a long period of time and there is no consensus on the level of THC to warrant a positive drug test, so some employers are giving consideration to deleting marijuana from the list of drugs for which drug-testing is conducted. The scarcity of job applicants adds to this concern.
Another factor is the expanding use of so-called synthetic marijuana, popularly known in some circles as "spice." Synthetic marijuana is not prohibited by law in many areas, and reportedly only a few laboratories can even test for it and that at great expense. The entire area of synthetic drugs has created enormous practical as well as legal issues for employers, and indeed for everyone. That is, the challenges that employers and law enforcement officials face include detecting use of many impairing synthetic drugs that are not included under most drug-testing programs and, indeed, not even declared illegal. Reports suggest that foreign manufacturers, particularly in Mexico and China, try to modify synthetic drugs so that the substances no longer test as illegal and also allegedly to make them even more addictive, and thus increase sales. These synthetic drugs are often much stronger than the regular illegal drugs and often cause more adverse side effects. There are no easy solutions to these problems.