Updated on January 28, 2019.
Medical content reviewed by Dr. Joseph Rosado, MD, M.B.A, Chief Medical Officer
Although people in the U.S. are welcoming the new medical marijuana laws, there is still uncertainty among employers and employees alike on how to handle using it legally in the workplace. As an employee using medical cannabis or considering getting a recommendation for it, you may have questions about the work drug test in your workplace and the adverse implications of positive test results.
As it stands now, there are many states that have legalized cannabis for medical purposes. The laws around medical marijuana require you to get written recommendation from an approved physician to use the drug for certain qualifying disabilities or diseases. As a patient, you can’t face prosecution under state law for using cannabis if you meet the criteria. But, it’s best to check with your state to be sure they have indeed legalized marijuana for medical purposes.
If you’re a patient with a recommendation for marijuana, and you live in one of the states where it’s legal to use medical marijuana, you may wonder if an employer can fire you or refuse to hire you for testing positive for the medical marijuana on a work drug test. To this day, the answer is leaning towards yes in most states, according to Nolo. However, several states have laws that prohibit an employer applicant or employee discrimination for using medical marijuana lawfully.
Obermayer Rebmann Maxwell & Hippel LLP reports that employers in most states with a zero tolerance drug usage policy can fire or refuse to hire employees who have failed a marijuana drug test, whether they had medical marijuana authorization or not. And since medical marijuana is still illegal federally, then employers under federal controls do not have to accommodate medical marijuana use.
Because the laws vary by state and this area of law is so recent, as an employee, it is prudent to consult with employers human resources department and/or an employment attorney to learn how the medical marijuana laws in the workplace apply to you in your state.
Medical Conditions Approved for Medical Marijuana in Qualified States
Certain medical conditions qualify for medical weed treatment. Patients who have been diagnosed with one of these qualified medical conditions and have a licensed doctor’s approval can receive cannabis treatment. The Department of Health for each state that has legalized medical pot is required to regulate marijuana distribution centers and production and issue identification cards to caregivers and patients.
The following is a general list of symptoms and ailments that medical marijuana can treat. These include:
What Symptoms can be Treated by Medical Marijuana?
Other conditions that qualify as well, so this is not an exhaustive list. Additionally, there’s a catch-all category that applies to other types of debilitating conditions that fall under the same type or class or are comparable to these conditions above — if the licensed doctor feels that the potential health benefits of using medical marijuana outweigh the patient’s potential health risks. These include conditions such as anxiety, diabetes, back pain, muscle spasms, severe nausea, chronic and severe pain and more.
Medical Marijuana and Employment
In states where medical cannabis is legal, the employer can either decide to accommodate or not accommodate an employee who needs to use weed for medical purposes. If your employer is one that agrees to accommodate you, there are still those states that regulate the type of medical pot you may consume and typically prohibit smoking. Therefore, your employer isn’t responsible for providing you with a smoking area.
Employers may offer you different accommodations, such as modified job duties or a leave of absence. In some states, your employer has the legal option to let you use cannabis products if they are low in THC which is the psychoactive component that can impair your judgment.
Some state laws unequivocally ban discrimination against people who have a medical marijuana registration card. However, there are some states, on the other hand, that do not include any such prohibition. What this means is employers in these states can prohibit their employees from consuming or smoking medical cannabis at the workplace.
As the legalization of medical marijuana in the U.S. states is still in its infancy, employers need more direction and guidance from the Department of Health to proclaim required regulations for not only the implementation of the new law as it applies to the workplace but also its enforcement.
Fortunately for employers in states that have already legalized medical marijuana have dealt with issues relating to medical marijuana in the workplace. Because this law is new, as mentioned and bears repeating, it’s best to consult with an employment attorney to learn how your state’s medical marijuana laws in the workplace relate to you. It’s always best to get the information ahead of time to be sure you are abiding all laws set by your state.
Medical Marijuana and Work Drug Tests
The big question remains — can employers still implement and enforce their zero-tolerance drug policies? In most cases, it’s up to the employer’s discretion. For instance, although medical marijuana is legal in some states, the drug continues to be illegal under the applicable federal law, which overrides any contradictory state law.
Consequently, many employers continue enforcing their zero-tolerance drug policies with some degree of confidence, including medical marijuana and drug test at work procedures and disciplinary actions for failed drug tests.
As an employee of an employer who enforces their anti-drug policy, it’s important that you understand the negative implications that a positive drug test could have, especially in the case of random and pre-employment screening drug testing. There are also workers’ compensation laws where automated drug testing and post-accident testing are required.
According to HR Defense, employers are permitted by federal law to test employees for drugs following an accident. The Occupational Safety and Health Administration (OSHA) stated in a final rule and follow up Memorandum in 2016 that it doesn’t prohibit employers from requiring a drug test to employees who report illnesses and injuries related to work as long as the employer can show there is a significant reason for thinking there is drug use involved that may have contributed to the illness or injury.
Why Employers Would Choose to Perform a Drug Test on Employees
Drug testing is an action that employers take to identify drug use in job applicants or employees. The use of drugs and alcohol abuse creates significant health and safety hazards and can also lead to poor employee morale and decreased productivity. It can also lead to short-term disability claims and other forms of healthcare claims.
What Jobs and Industries Require Drug Testing?
Department of Defense contracts
Safety-sensitive industries regulated by appropriate federal agencies, such as the Federal Aviation Administration, the Federal Highway Administration, and the U.S. Coast Guard.
What are Common Reasons For Workplace Drug Testing?
Prevent hiring applicants who use illegal drugs.
Prevent employees from abusing drugs.
Identify employees with dependency problems and refer them appropriately.
Provide employees with a safe workplace.
Receive Workers’ Comp premium discounts.
Comply with federal and state laws and regulations.
Protect consumers and the general public and ensure employees are working safely.
So, how do you, the job seeker or employee, protect yourself? Is taking a drug test at work for medical marijuana a good idea? These are questions that employees face. Decisions are tough on the employer regarding when to test, who to test and if they should test at all when not required by a federal agency.
Medical Marijuana and Testing Positive
No matter what state you live in, the law prohibits operating or driving vehicles while under the influence of cannabis. Therefore, this presumptively means that employers can prevent you from using medical marijuana or being under its influence at the workplace.
Marijuana is still prohibited by federal law for any reason, so in most states, employers can still test you and discipline you if you fail your test. There are a few states that may not fire employees who fail a drug test with a medical marijuana card, but it’s important you check with your state and your employer.
Marijuana Stays in Your System
Even if you’re not using medical pot at the workplace, it can stay in your system long after you consume cannabis. It can raise issues with an employer’s zero-tolerance drug policy since your off-duty use can cause you to fail the drug test.
The standard drug testing today can’t determine how much Cannabidiol (CBD) or Tetrahydrocannabinol (THC) you have in your body or for how long it has been there. THC accumulates and stores in your body’s fat reserves for as long as 90 days.
And, even in states where medical cannabis is legal, employers who implement nondiscriminatory zero-drug policies may still refuse to hire or terminate employees who fail the drug tests regardless of whether they had a licensed doctor approval. On another note, there have been employees who live in other states where medical cannabis is legal who filed lawsuits against their former or current employers for not accommodating their disability.
Are You Protected?
So again, this raises the question, “Can you pass a drug test with a medical marijuana card?” Although you have the legal right to use medical marijuana, that doesn’t necessarily mean you’re guaranteed job protection when you exercise this right, unless it’s prohibited by your state’s law that your employer can’t fire you for using marijuana off-premises.
You may wonder if your use of medical marijuana for your debilitating medical condition will affect your employer’s marijuana use at the workplace and work drug test policies or if you’re protected under the American with Disabilities Act to receive reasonable accommodation. Will your employer have to give you a break to use medical cannabis for your condition?
Courts have addressed this over the years. They have found employers are under no obligation to give such a break or accommodate employees who use this drug in the workplace. This is mostly because the Americans with Disabilities Act (ADA) states that any person who uses illegal drugs isn’t considered a “qualified person with a disability” and isn’t ADA protected.
Despite the drug being legal for medicinal use in some states, federal law still declares the drug illegal and, therefore, the ADA considers it illegal.
In some states, your employer must provide you with a copy of the results of your drug test and a chance to challenge the results. This may be either having the sample tested or having the results explained.
Negative Implications for Employees Prescribed Medical Marijuana
Occupational Health & Safety (OSA) states that the penalty for failing a drug test is usually discipline or termination for current employees or refusal to hire for applicants. Although you may be familiar with laws legalizing the medical use of marijuana — or states where it’s legal for recreational use, too — you may be shocked by this harsh penalty.
Employers have good reasons for implementing zero-tolerance policies, including a ban on marijuana use. Some reasons include:
One of the biggest concerns of a company that makes them prohibit cannabis in the workplace is safety concerns — and this concern is valid. This is because marijuana has been linked to increased work-related injuries and accidents. A study showed that workers who used marijuana had 85 percent more work-related injuries than non-users.
A particularly alarming safety concern that cannabis impacts is transportation safety. Studies conducted by the National Institute on Drug Abuse (NIDA) have shown this drug to affect your driving performance negatively. It impairs motor coordination, reaction time, attentiveness and impacts your perception of speed and time increasing your risk of accidents and fatal collisions significantly.
The Institute for a Drug-Free Workplace LLC states that 40 percent of employee theft in the workplace is a result of drug abuse. Fifty percent of accidents in the workplace are also due to drug abuse. Employees who abuse drugs are ten times more likely to be absent from work who abuse drugs than those who don’t. Employees who abuse drugs have a higher chance of working for three or more employers in the past year. They also have more significant unexcused absences.
Small businesses are hurt by workers using marijuana the most since they tend to hire younger employees with a higher rate of usage and are less likely to afford the pre-employment drug tests to detect drug use in potential applicants.
The Drug-Free America Foundation, Inc, advocates that marijuana use in the workplace can lead to issues with productivity and attendance and impact morale, but it’s becoming more socially acceptable, which influences its dangers. Employees who use drugs have costlier and frequent medical claims, and this increases the overall healthcare costs for all employees. Productivity is diminished due to poor job performance and absenteeism, and it costs the nation around $197 billion annually.
ADA and FMLA Concerns
The Family Leave Medical Act (FMLA) and the Americans with Disabilities Act (ADA) don’t protect you from the repercussions of medical marijuana use. As mentioned before, employers are under no obligation to accommodate your use, impairment or possession of medical cannabis while you are in the workplace.
Even though cannabis is legal in some states, employers can still ban it in the workplace. You won’t face criminal charges of using medical cannabis if your use is compliant with state statutes. However, you may still face certain consequences at work.
Employers are not required to compromise workplace safety, even though marijuana is legal in some states and can prohibit it under their substance abuse policy as they see fit. If you use or appear to be under the influence of the drug at work, the legality of medical marijuana won’t save your job.
As of today, courts have ruled that your employer can take action if you breach their substance abuse policy by testing positive for cannabis, even if you do it for medical purposes away from your place of work. But, there are newer laws regarding medical pot that could protect employees, but they haven’t been tested in court yet.
To keep the workplace safe for all employees, employers can’t compromise yours or any other employee’s safety due to your lawful use of any prescription drug, including marijuana. OSHA regulations dictate that employers should maintain a drug-free work atmosphere and policy and thereby prohibit the use of controlled substances at work or be under the influence of them.
Seek Help for Medical Marijuana
Yes, the trend is moving towards marijuana being legal in more states, particularly for medical reasons. But, employers who haven’t figured out how they’ll handle workplace issues relating to the drug should do so as soon as possible.
The key takeaway for employees and employers is that not much will change unless and until the Department of Health enacts and implements regulations. Still, it’s essential for companies to communicate clearly their drug policies, so there’s no confusion, uncertainty or reason for any employee to make a wrongful termination claim.
In the coming months or years, future amendments, additions or lawsuits to the law can change. There are sure to be workplace challenges, but employers and employees are encouraged to seek the help of legal counsel regarding medical cannabis in the workplace as issues arise.
If you have questions about work drug tests, contact Marijuana Doctors or search for a medical marijuana doctor near you today.