Can You Fire an Employee Over Medical Cannabis Use? It’s Complicated
You own a trucking company. You conduct regular drug testing, in compliance with the Federal Motor Carrier Safety Administration’s drug and alcohol rules. One of your employees tests positive for marijuana. You have a defensible basis to fire that person, right?
Not so fast. What if your state has legalized medical marijuana, and the employee has a certificate for chronic back pain? What if he promises that he never works while under the influence? And what if he claims that your actions constitute disability discrimination?
Sounds like it’s time to call a lawyer—good thing Fleet Owner already did:
Tawny Alvarez of Verrill Dana, LLP, attorneys at law, speaking at a recent NationaLease meeting, said it is important to remember the federal laws continue to outlaw the production, sale or possession of marijuana. She adds that state laws have no effect on federal laws. So in essence, people producing, selling or possessing marijuana are in a difficult legal position: Their activities are legal under state law, but illegal under federal law.
The problem is there is no clear-cut answer to who is right or who will prevail in a lawsuit as these types of cases are just beginning to work their way through the courts. What is clear is that the courts have viewed this issue under the Americans with Disabilities Act and have ruled that allowing the use of medical marijuana is not a reasonable accommodation.
The article ends with a list of bottom-line takeaways from Alvarez regarding medical marijuana and the workplace. Key points include…
- “employers do not have to tolerate drug use at work or employees being impaired while at work,”
- “The employer needs clear proof regarding observed behavior or a positive test results pursuant to a state approved drug testing program,” and
- “marijuana is still illegal under federal law.”
Oh, and this one: “There is uncertainty in the law.” You can say that again. As laws surrounding the possession and use of marijuana (or “cannabis”—the words we use matter) continue to evolve, there will certainly be more cases and perspectives that clarify employers’ and employee’s rights in the workplace. We’ll continue to cover this emerging topic here on our blog.
You can read the full article on Fleet Owner here.