Confusion, Conflict Over Medical Marijuana and Employment

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It used to be random drug testing was a normal procedure in American but human resources managers are struggling as to whether random drug tests constitute discrimination under the Americans with Disabilities Act, what they are legally allowed to ask job candidates and whether they are required to accommodate after-hours and offsite use of medical marijuana.

“It’s throwing employers for a loop because many have policies in place where testing positive for THC, or Tetrahydrocannabinol (the active ingredient in pot) requires the employee to be terminated or to participate in some sort of treatment program even if it’s not necessary,” says Alison Holcomb, an attorney for the American Civil Liberties Union, ACLU, in Washington.

One of the issues is that companies that receive federal contracts prohibit the use of marijuana as a condition of participation under the Drug-Free Workplace Act of 1988. Another concern is that the federal Department of Transportation has guidelines that were just revised this past year that prohibit the use of medical marijuana for transportation workers in jobs such as pilots, school bus drivers, truck drivers, subway operators and transit armed security.

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"It really boils down to this: An employer's right to maintain a drug-free workplace is critical," says Denise Davis, a spokeswoman for the California Chamber of Commerce. "It protects the safety of all workers and limits exposure to potentially costly litigation."

Where does that leave employers and employees? Well filing for lawsuits is one. That is the a recent case where an employee disclosed her use of marijuana during the hiring process and provided the company a copy of her physician’s authorization, but was fired during a pre-employment drug screen when she tested positive for THC.

“We’re arguing that firing that patient is a violation of public policy because it enters the employer into the confidential physician-patient relationship,” says Holcomb. “Whether the patient decided to use marijuana, OxyContin, or an anti-depressant should be a private medical matter and unless the use of that medical treatment has an impact on her ability to do her job, or involves a safety issue, she should not be forced to choose between her doctor’s advice and earning a living.”

Meanwhile, it appears that human resources departments will have to walk a very thin line and stay in contact with their legal counsel regarding the use of pot, Holcomb says.

"What I hope is that we'll recognize we don't want to force very ill people to decide they can't avail themselves of this physician-authorized treatment because they can't afford to lose their job," she says. "That's just bad policy, and I don't think most employers want to support that."

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