There are certain states that have legalized the use of marijuana for medical purposes. Other states have also legalized marijuana for recreational use.
This increase in decriminalization raises questions regarding whether employers in states that have legalized marijuana use may terminate employees who use it for medical reasons. This issue typically falls under the laws that prohibit discrimination based on disability.
Discrimination laws require employers to make reasonable accommodations for any disabled employees in order to allow them to do their jobs. In general, medical marijuana may be prescribed for:
- Muscle spasms;
- Side effects of cancer treatment;
- Chronic seizures;
- Crohn’s disease;
- Nerve pain.
An employee may be able to argue that any condition for which marijuana is used as a treatment may constitute a disability and that exceptions to an employer’s anti-drug policies being made in these cases would be reasonable accommodations. However, because marijuana is still illegal under federal laws and has a potential for abuse, requiring an employer to modify its drug policy would not be considered a reasonable accommodation.
What Is Selective Drug Testing for Employment Purposes?
In the majority of states, an employer has the right to test job applicants for drug or alcohol misuse. With advances in technology, employee drug testing using hair, urine, blood, or breath samples is now possible.
In most situations, the testing does not occur until the applicant has formally been hired. Selective drug testing occurs when employers select one specific employee, candidate, or group of individuals for drug testing based on certain qualities, such as:
- Educational background;
- Other characteristics.
In these instances, only one individual or group is required to submit to the drug test, while others are not. This is different from random drug testing, where all employees have an equal probability of being chosen to take a drug test.
Selective drug testing can be a breach of workplace drug testing laws as well as employment laws, including employment discrimination statutes. Discrimination arises if the employee was selected for drug testing based on their membership in a protected class, including their:
- National origin;
- Political affiliation.
What Are Federal Workplace Drug Testing Laws?
There are also federal workplace drug testing laws that govern drug-free employment. The majority of private employers are not required to create a drug-free working policy.
Federal grantees and contractors, as well as those occupations and industries that require safety and security, however, are exempt from this rule. The federal legislation that governs drug-free workplace standards may be classified into two basic categories or groups.
One category includes laws that are expressly intended to combat substance abuse in the workplace, such as the Drug-Free Workplace Act of 1988 fall into this category. These laws require certain types of companies to take action against workplace drug use, for example, by adopting a written policy.
The other category of laws is intended to preserve the basic civil rights of American workers. There are certain types of employees that are provided particular legal protections under these statutes.
These laws create explicit restrictions regarding how far employers may investigate and impose sanctions for employee drug use. Important applicable federal laws and regulations include:
If an employer is considering drug testing, it is important to consult with an attorney. Numerous lawsuits have been filed against employers for reasons such as:
- Invasion of privacy;
- Wrongful termination;
In addition to consulting with an attorney, the best way for an employer to avoid a lawsuit is to ensure that all of their policies are implemented fairly and consistently. This means doing so in a way that does not violate local, state, or federal civil rights or workers’ rights laws.
What Are Some Other Types of Employee Drug Tests That Are Not Allowed?
Every state has its own rules governing drug testing for job purposes. Drug testing without an applicant or employee knowing or approving is referred to as covert testing.
For example, an employer may collect hair from an employee’s desk and test it without their knowledge. Doing so may violate both privacy rules and employment laws.
Certain types of drug testing may be strictly prohibited in certain states, especially those that are considered physically invasive to the test participant. Blood testing, for example, has been restricted in many jurisdictions.
If an employee is unsure about the drug testing regulations in their state or their state’s marijuana law, they should consult with an attorney. In certain situations, an employee may decline or refuse a drug test.
For example, if an employee has a medical condition that is covered by the ADA, they may refuse to take the drug test if their employer requires them to do so in a manner that violates the ADA’s reasonable accommodations requirement.
An employee may also refuse a drug test if participating would contravene state law. In addition, an employee may decline the test if they believe they can establish that they are being drug tested based on discrimination.
The consequences of refusing a drug test may vary depending on many factors, such as:
- State laws;
- Corporate rules;
- Employment contracts;
- The job field;
- The specifics of the situation;
- Other issues.
The most common outcome for workers who refuse to take drug tests is that they will be terminated. If they are a prospective job candidate, they will not likely receive a job offer.
In addition, an employee who is terminated for refusing to take a drug test at their employer’s request may also lose their employee benefits. This includes their health insurance coverage, if it is provided by their employer.
Some states have also enacted laws prohibiting employees from collecting unemployment benefits if their employer terminated them for refusing to take a mandatory drug test.
Should Employees Pursue Their Claims in Court?
The laws governing these issues, especially medical marijuana and marijuana use, are constantly changing. There may be laws that are overturned or exceptions that are made to existing laws.
A state court decision will be limited to the circuit or state in which the court is located. For example, a Texas court decision does not have any power in a California state court.
Plaintiffs in different states can bring similar cases that result in different outcomes. Many of these types of cases are limited to specific situations.
For example, the Sixth Circuit limited its ruling on the issue to private employers. This means that employees working for public entities may still be protected by medical marijuana laws.
In California, however, the State Supreme Court held that the marijuana statute does not provide direction as to California employment law. This means for a wrongful termination claim that is based on the use of marijuana to succeed, the state’s marijuana law should explicitly cover what steps a wrongfully terminated employee should take.
Seeking Legal Help
If you have been terminated because of the use of medical marijuana, the results of a positive drug test, or if you believe your testing was discriminatory, it is important to consult with a wrongful termination lawyer. Your lawyer may be able to help you contest the test results.
In addition, your attorney can help you file a claim in court if necessary. Your lawyer may also be able to negotiate with your employer, especially if there were discrimination issues, and be able to get your job back if you would be interested in doing so.