Benefits

Has Workplace Drug Testing Gone to Pot With Legalized Marijuana?

By Jon Hyman

Apr. 9, 2014

Late last year, I asked the following question: Can an employer fire an employee who tests positive for legally prescribed marijuana? It appears that employers are indeed struggling with this question. New Jersey transit is the latest employer to be sued as a result of an employee’s use of legal marijuana. NJ.com reports that an employee has sued the transit agency for disability discrimination after it suspended him and sent him into rehab because he is a registered patient with the state’s medical marijuana program.

This case is the latest challenge by an employee who suffered at work through the legal use of marijuana. So far, the employer has won each of these challenges on various legal grounds (see here, here, and here).

Medical marijuana is legal in 20 states plus the District of Columbia. Ohio is not one of these states. Nothing, however, would stop one of your Ohio employees from legally using while on vacation in Colorado, for example. Regardless, marijuana remains illegal under federal law. And, the Americans with Disabilities Act does not protect employees under the influence of illegal drugs. Thus, I remain confident that you can legally prohibit employees from being under the influence of marijuana while on the job, even if its legally prescribed. As for the lawful use of marijuana by employee outside of work, there is no clear rule of law, even if the cases so far seem to support an employer’s right to regulate.

Until the courts sort these issues out, prudent employers should tread carefully and consult with their employment counsel before disciplining or firing any employees who are using legally prescribed marijuana away from work.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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