Should Employers Exempt Medical Marijuana From Their Drug Testing Policies?

The short answer, for now, is no. But let’s look at a couple of recent cases that may demonstrate a growing trend.

In July, the highest state court in Massachusetts ruled that while marijuana remains an illegal controlled substance under federal law, an employer who fired an employee for testing positive for marijuana its use may be liable for disability discrimination because she used it to treat her Crohn’s disease.

Massachusetts law provides that a person who uses marijuana for medical purposes shall not be penalized in any manner. Thus, the employer should have either made an exception under its drug testing policy or, at the very least, engaged in the interactive process to determine whether there was any other treatment that would be equally effective and, if there was not, the employer needed to show that making an exception to the drug testing policy would cause it an undue hardship.  

This month, the U.S. Court of Appeals for the Second Circuit reviewed a case involving Connecticut’s law which prohibits employers from refusing to hire or terminating an employee who is a user of medical marijuana. The employer attempted to argue that federal laws, including the Controlled Substances Act and the Americans with Disabilities Act, preempted the state law, but the appellate court disagreed, finding no direct conflict between the laws. In its ruling, the court specifically distinguished Michigan’s medical marijuana law which does not contain any restrictions applicable to employers.

So, unless and until Michigan’s laws concerning marijuana change, whether legalizing it for recreational purposes or expanding the rights of users of medical marijuana, employers should continue to state in their drug testing policies that having a medical marijuana card will not exempt an employee from its drug policy or prevent discharge for testing positive.

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