My New Hire Has a Medical Marijuana Card. Now What?

Medical marijuana legalization is becoming more prevalent, as states continue to legalize marijuana for medical and recreational purposes. This new trend has created legal ramifications for employers, who have struggled to create and maintain drug testing policies to keep pace with differing state laws. Employers can still enforce drug-free workplace policies and implement drug-testing policies, provided that those policies comply with state law.

Intersection Between Federal and State Laws: Illegal Substance vs. Disability Discrimination

The current tension in the law arises from the fact that possession and use of marijuana remains illegal under the federal Controlled Substances Act (CSA). The prohibition of marijuana under the CSA has historically protected employers in medical marijuana states which bar employees from using marijuana during the workday, before a shift, or bringing it into the workplace.
Further complicating matters is the disclosure by medical marijuana cardholders of their status as cardholders during the hiring process – usually before a drug test is administered. New case law has muddied previously clear waters for employers with respect to when, how, and under what circumstances employers should drug test employees and prospective employees.

Extending Protections of State Discrimination Laws During Hiring Process

Recent decisions in state courts in Massachusetts and Rhode Island reflect a changing trend in medical marijuana law that may open the door for more state disability discrimination claims. In Barbuto v. Advantage Sales & Marketing, LLC, the plaintiff disclosed during an interview that she was a medical marijuana cardholder and was terminated following a positive result. The lower court dismissed her claims, but the Massachusetts Supreme Court revived her claims, and held that she had a triable claim regarding whether her termination violated state law.
In Callaghan v. Darlington Fabrics, the plaintiff alleged that the fabrics company discriminated against her after her offer of a paid internship was rescinded solely because she was a medical marijuana cardholder. She argued that the company’s action constituted disability discrimination under state law, which protects cardholders from discrimination in employment. The court acknowledged that the employer did not have to accommodate drug use in the workplace, but agreed that the employer’s actions amounted to disability discrimination under state law.

Takeaways for Employers

If an employer wants to implement a drug-testing policy and/or a drug-free workplace, the best practice is to have a written policy. Policies must clearly communicate the circumstances under which employees/prospective employees will be tested, the substances that will be tested for, types of tests used, the consequences of refusing to submit to a test, and the consequences of a positive result.
As part of the hiring process, many employers use pre-employment testing to flush out unfavorable candidates. Any drug test should follow a conditional offer of employment, as pre-offer testing can violate the Americans with Disabilities Act’s prohibition on gathering medical information on job applicants. Once an applicant becomes an employee, some states vest employees with more substantial rights that may make it difficult to terminate an employee who returns a positive result.
The decisions from Massachusetts and Rhode Island reflect state courts’ willingness to extend the protections of state discrimination laws to protect medical marijuana cardholders during the hiring process. To avoid discrimination claims, employers must adhere to consistent policies when responding to positive drug tests and ensure that all terminations are based on legitimate and nondiscriminatory reasons.
Consult with experienced labor counsel if you are confronted with a medical marijuana cardholder during the hiring process and/or a candidate who returns a positive drug test to determine the best course of action, given the changing state laws which may prohibit employers from discriminating against cardholders on the basis of their status with respect to hiring, termination, or imposing some other term or condition of employment.
Amanda Wingfield Goldman is Of Counsel in the New Orleans office of Coats, Rose, Ryman, Yale & Lee, PC and specializes in labor and employment.  

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