Okay, so you conduct employment screening on your new job applicants and one of the background checks is a drug test. You have a zero tolerance policy within your workplace, and now this highly desirable employment candidate returns positive on his drug test. As an employer you discover that he has health issues and is in possession of a medical marijuana permit, which means the state allows him to ingest marijuana without penalty.
So what do you do? What can you do. This is a situation that is arising more frequently as different states approve medical marijuana legislation. So far, fifteen states have approved medical marijuana legislation. They are–Alaska, Arizona, California , Colorado, District of Columbia, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington. Arizona was the most recent to pass medical marijuana legislation.
As zero-tolerance drug use is the norm in Arizona, this makes for a tricky situation. You have the issue of employee rights, versus the chances that, by virtue of being stoned, they can injure themselves or someone else in the workplace. The employer must face a variety of issues pertaining to the actual injury, including loss or production, and possible litigation due to liability issues. Then, unlike with alcohol, there is no standard defining what impairment actually means when one is under the influence of marijuana, this is another issue that has yet to be defined. With alcohol, at least while driving, most states consider impairment at .08. With marijuana, who knows?
According to the Arizona Republic, In Arizona, the new medical marijuana law prohibits employers from discriminating against medical-marijuana users. Additionally, the new law does allow employers to terminate or take action against employees who use medical marijuana on the job or whose work is impaired by the drug.
Prevailing legal wisdom is to consult with your attorney as to what rights you, the employer, has in your state. This may vary from state to state. However, that being said, there are myriad test cases in the various courts. How this issue will resolve itself, it is really difficult to say. Whether there will be a more universal guideline that each state can follow or whether this will be decided on a state-by-state basis, it is difficult to say.
I don’t believe most states considered the ramifications of the medical marijuana law and were therefore unprepared for the contingencies. However, here they are. I have blogged about this subject before, and I am sure I will be writing about it in the future. One such article is, The Ongoing Medical Marijuana in the Workplace Controversy. I believe that title is certainly appropriate enough.
