After setting up a round of interviews for an open drafter position located in Los Angeles, CA, the hiring manager left me a concerned voicemail. “A candidate came in for an interview and asked if we require a pre-employment drug screen. Once confirmed, he stated that he has an MMJ (Medical Marijuana) Card. How should I proceed?”

My initial reaction was to advise against advancing this type of candidate along in the hiring process. Am I wrong? There are some reasonable questions that this issue raises, though there are limited resources and information on this topic. If this situation arises when you are recruiting for an opening, be sure to do a little research before dropping the axe on an applicant.

Does your employer perform pre-employment drug screens?

If not, take a look at the types of positions you place to assess potential liabilities in the event an employee in one of these roles came to work under the influence. If marijuana use would have no impact on the ability of the employee to perform their tasks (no legitimate examples come to mind), then perhaps foregoing testing would acceptable.

Does your employer have a drug-free workplace policy?

If you’ve established, as most employers have, that a worker under the influence is going to have an adverse impact on your productivity, and thus, would not be a practice your company wants to condone, a drug-free policy should be in place. Visiting SHRM or performing a quick Google search provides plenty of help and policy examples if needed.

Can an employer choose not to hire someone with an MMJ Card?

Yes they can. If you have a drug-free workplace policy, hiring someone testing positive for marijuana would be in violation of that policy. If without a policy, you should in the least set a standard, being consistent across the board for all hires into a certain position or for the entire company as a whole. Hiring one person who has an MMJ card and then denying someone else because they have an MMJ card for the same type of position could open up your company to the threat of other discrimination-related litigation.

A current employee received an MMJ Card after they were hired. Can I terminate their employment because of this?

According to the Oregon Supreme Court, yes. Oregonlive.com reported in April of this year that:

Workers who use pot to relieve pain or nausea can be fired for drug use even if they have a state-issued medical marijuana card, the Oregon Supreme Court ruled Thursday.

“The highest court in the state has now said that employers need not accommodate medical marijuana users in the workplace,” the group said in a news release. It said employers should feel free to apply “zero-tolerance” drug policies and refuse to hire applicants who fail drug tests “regardless of medical marijuana registry status.”

The California State Supreme Court has ruled that employers have the right to fire potential or current employees, regardless if they’re medical-marijuana patients. Without this ruling, employers would risk violating the Americans with Disabilities Act.

The groundwork for this case was laid in California years ago. SafeAccessNow.com published an article on a

California Supreme Court decision:

On January 24, 2008, the California Supreme Court issued a published decision in Ross v. Ragingwire Telecommunications, Inc. (2005), denying a qualified medical marijuana patient any remedy for being terminated from his/her employment simply for testing positive for marijuana. ASA has since sponsored legislation, introduced by Assemblyman Mark Leno, that would overturn the Ross decision and restore employment rights to medical marijuana patients. That legislation passed both chambers of the California Legislature, but was vetoed by Governor Schwarzenegger.

Prior to the Ross decision, ASA had successfully challenged employers’ decisions to deny unemployment benefits to patients who were fired for testing positive for marijuana in an employment drug test. Because the denial of unemployment benefits requires willful disregard of a known employment standard, the Ross decision does not rule out the possibility of collecting unemployment benefits.

When similar inquires to those above were posted on a LinkedIn.com message board, a Director of Human Resources responded with some interesting insight:

Because medical marijuana is not recognized by the US federal government, this is a state-by-state issue. Things will stay this way unless and until a lawsuit is filed and decided in federal court. I do not have any employees in a state that recognizes medical marijuana, so my answer may be a little off the mark. That said, here are some thoughts:

The issue as I see it falls into three categories:

Zero tolerance policy

Safe work environment

ADA accommodation and productivity

I’ll take each one by one.

Zero Tolerance

Any banned substance can be overridden by a medical prescription. This means that if an employee (or prospective employee) tests positive for marijuana (as a listed banned substance) and that employee can provide a prescription for the marijuana, then the employer would have a difficult time disciplining or terminating the employee on a state but not federal level. If pressed, I would suspect this issue could wind up in court.

Safe Work Environment

Employers are required by state and federal law to provide a safe work environment. This includes preventing those proving a threat to self or others from entering the work place or executing certain job functions. The federal court (and many state courts) has extended this responsibility to certain commutes to and from the work place or work function. Specifically, if an employer observes an employee demonstrating impaired mental functioning and that employer sends the employee home without providing transportation, the employer is liable for any accidents that occur during the commute from work. Medical marijuana would, I suspect be treated like any other medication that results in impaired judgment or mental functioning. Because of this, an employer would be prudent requiring a release to work statement from the prescribing physician with extremely specific directions regarding banned activity. Obviously a fork lift driver will have different restrictions from an accountant.

ADA accommodation and productivity

Employers are required to provide reasonable accommodation to an employee with a bono fide and documented disability. Medical marijuana in and of itself does not pose a disability. However, it may be prescribed for a recognized disability and then the employer would need to decide if allowing marijuana use during work hours was a reasonable accommodation. The word reasonable is the key. Employers do not have to employ individuals who clearly cannot continue to execute job requirements. If medical marijuana prevents an employee from executing required work, as determined by a “reasonable person” that person can either be reassigned or separated from the company altogether.

My personal bias would be to follow the spirit of federal law on all three areas. Which would mean: marijuana use is illegal and therefore not protected. However, I can see this matter winding up in court as a state’s rights issue at some point in the future.

In the event of dealing with MMJ cardholders in the workplace, no matter what decision is made, it is always a good idea to document well and ensure the best interests of your employer are at the forefront.

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