With medical weed now legal in fourteen US states there will probably many thousands of employers out there wondering how to deal with keeping the work place drug free while, at the same time, providing the necessary environment for those who use prescribed medical marijuana. To be honest, the whole medical pot question is something of a hornets’ nest. The federal government refuses to move from the ‘all marijuana is illegal’ stance and the legal states have wildly differing approaches to the subject. If ever there was a good time to review your company’s drug policy, it has to be now.

Here’s some direction for these largely uncharted waters:

For those who companies who work for the government, i.e. those that have federal contracts, the guiding document has to be Drug Free Workplace Act of 1988, which prohibits the use of marijuana in workplaces participating in such contracts.

The Department of Transportation also prohibits the use of medical marijuana for those workers in what they term ‘safety-sensitive’ jobs, so think pilots, bus-drivers, truck drivers, subway operators, ships’ captains, and transit fire-armed security. This prohibition applies in all states, including those where use of medical marijuana is allowed.

It bears remembering that most state legislation protects medical users of cannabis from ‘civil and criminal’ penalties and not from having their employment terminated.

Attorney Damon Davis, at law firm Killian & Davies, offers the following words of advice: “Treat it (medical marijuana) like you would any other prescription medication, can the employee do it safely and legally?” This attitude, he says, could save employers both time and money in a climate that sees medical marijuana becoming more widely accepted and expected to become legal in more states this year and next.

Different States, Different Rules

First thing to say is that in legalized sates, licensed patients are protected from arrest as long as they have completed the necessary paperwork and have proof of a physicians approval. Then, it all gets a bit confused…

If you are living and working in California or Oregon and test positive in the workplace for marijuana you can be fired. This is true even if you are using marijuana with the full approval, and a prescription from, your doctor.

Precedent was set in 2008 by the Ross v RagingWire case in which the California Supreme Court found that employer drug testing is legal and it is not discriminatory to fire an employee for using medical cannabis even when they use it away from the job. In Oregon, the case of Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Supreme Court found that Oregon employers need not hold with the use of medical marijuana by employees, because federal law takes precedence over state law.

In Vermont, your right to use marijuana in your own time and space is accommodated, however, should you be found under the influence of cannabis in your place of employment you may be arrested or prosecuted. The same applies in New Mexico.

In some states, including Maine and Rhode Island, you may not be discriminated against or penalized for your use of medical marijuana alone.

The moral has to be – check the rules and regulations in your state very carefully before you use or consider using medical marijuana either in the workplace or at home.


Author Dianne Morgan

More posts by Dianne Morgan

Join the discussion One Comment

  • First I would like to say thanks for putting together a great resource for the medical marijuana industry.

    I live in Florida where a concerted effort is under way to get medical marijuana on the ballot. I find it ironic that at least in the Hospitality industry here it is widely accepted that a large percentage of employees are under the influence of something, yet there is so much resistance to get those same people to support the ballot initiative.

    On many occasions I have seen employers look the other way rather than address the issue. Yet states that have medical marijuana laws in place would still choose to enforce antiquated conduct policies in the work place. Abuse from alcohol is by far much more rampant in the workplace and is exponentially more dangerous and is accepted, to me is unconscionable!

    A CEO who has a double scotch on the rocks for lunch and fires an employee for testing positive for his medicine is the definition of double standard. I agree 100% that employees should not use their medicine at work, but at home? I do feel like more states are starting to understand the benefits to medical marijuana but I think that the same common sense approach should also extend to patients rights in the work place. I think Vermont and New Mexico are on the right track with respect to penalties and hopefully more states will follow….

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