Medical Marijuana in the Workplace
The scenario is about to occur again and again in Pennsylvania now that medical marijuana is available to registered users: An employee who uses medical marijuana is given a random or post-accident drug test and the test results come back positive. The drug test is not qualitative, i.e., does not provide information about the level of active metabolites (such as tetrahydrocannibinol, or THC) in the employee's system or it may only test for inactive metabolites. The employer, confident that its "zero tolerance" policy for failed drug tests is legal, terminates the employee without any thought as to whether or not it must reasonably accommodate the treatment regimen that the employee and his physician have selected. In this scenario, the employer has engaged in disability discrimination and failed to engage in the interactive process in good faith.
Employers are correct that when it comes to medical marijuana, there are some limits on what employees can do. Employers can prohibit employees from using medical marijuana in the workplace and can restrict the level of active metabolites in an employee’s system when that employee is working in a dangerous environment, such as with chemicals or electricity. But dismissing an employee who is a certified medical marijuana user simply because he or she fails a drug test is unwise.
Medical marijuana users are able to select a product from a pharmacy that is tailored to their particular medical needs. For instance, individuals who want to relieve pain or improve sleep because of pain often select an Indica strain, most often to be used in the evening or at night. When used properly and at an appropriate dose and strength in the evening, these employees can report for work the next day no longer under the influence. What employers must understand is that when an employee tests "positive" for marijuana after using medical marijuana in this way, the test is likely designed to detect inactive metabolites and that the employee did not necessarily report to work under the influence of marijuana.
Employers often mistakenly believe that a drug test is like a test for alcohol. An alcohol test tests for the presence of only alcohol, which causes mental and physical impairments. Furthermore, a positive alcohol test is usually an indication that the employee recently drank alcohol. A marijuana test, on the other hand, may test only for inactive metabolites that do not have any mental or physical effects on the body and those inactive metabolites may stay in the body for days or weeks, so a positive result does not necessarily mean the employee has recently used marijuana.
One of the challenges an employer faces when requesting a medical certification that states that an employee can safely perform his or her job functions is that the products available at medical marijuana dispensaries vary depending on what is available at that time. The types of products (edibles, capsules, tinctures, etc.) vary significantly from month to month. Furthermore, the strength of each product may vary over time because marijuana is a natural product; therefore, the amount of THC will vary from crop to crop depending on growing conditions. Employees should choose a dispensary that tests the THC content of each batch of product offered for sale and obtain assistance from a pharmacist in calculating the correct dose that should be taken from each new batch or type of product to ensure that the employee is routinely ingesting the same amount of THC.
When an employee obtains this information from a pharmacist, the employee's doctor can then give a reasonable opinion as to whether that employee's chosen dose of THC―taken consistently because of appropriate consultation with the pharmacist―is appropriate for the employee to take in the evening and then safely report for work the next day. Without this information, the physician cannot be certain exactly what dose of active compound the employee is taking on a regular basis and therefore cannot give an opinion on the employee's ability to perform his or her job safely.
Employees who use medical marijuana should be proactive in having such discussions with a pharmacist and physician. This information can also be provided to employers proactively so the employee can avoid the embarrassment of needing to explain a failed drug test to the employer and/or appear to be “hiding” medical marijuana use.
When employees and employers work together to discuss an employee's need to use medical marijuana, the employer is able to retain a qualified employee and ensure that workplace safety is not affected, while the employee can maintain employment while receiving the medical care recommended by his doctor. When employers draw bright lines and refuse to accommodate medical marijuana use under any circumstances or an employee is unwilling to work with his or her pharmacist and physician to provide the employer with reasonable information and assurances about his ability to work safely, only job loss and litigation will result at an expense to everyone involved.
Employees who use medical marijuana and who are terminated for failing a drug test without further inquiry from the employer--even those employees working in safety-sensitive positions--should consult with an attorney about being reinstated to work or about filing a disability discrimination claim. Employers should also consult with qualified counsel before terminating or disciplining an employee who uses medical marijuana, even if the employer learns of that fact because of a failed drug test.
If you have any questions or concerns about medical marijuana and its effect on employment, do not hesitate to contact one of Scaringi Law’s employment attorneys at 717-657-7770.