Medical marijuana and drug testing in the work place had been receiving significant amount of publicity in the last few years. A crucial case law and contradictory legislations in various states had been adding to the confusion. Many employers are unaware of their rights and the steps they should take to protect themselves from punitive actions by state and federal governments, if an employee had been permitted to use marijuana medically and pass a drug test with marijuana present in the body in the workplace.
In 2005, the U.S. Suprement Court passed a verdict that the employer possessed the right to refuse acceptance of medical marijuana as a medical reason if an employee tested positively for a drug. This case is known as Gonzales vs. Raich or Ashcroft vs. Raich. Still, the Americans with Disabilities Act (ADA) accepted and passed by majority of state and the federal governments allow the employer to consider the accommodation of an employee, if the medical condition of the employee had allowed the recommendation of specific medical marijuana use.
Still, the employee with medical marijuana use should take certain precautions to pass a drug test. If a physician had prescribed smoked marijuana to a patient, the medical marijuana laws in 13 states protect them from criminal liability. These states are Alaska, California, Arizona, Colorado, Maine, Hawaii, Montana, Maryland, Oregon, Nevada, Vermont, Rhode Island, and Washington. Still, these states had also set limitations on the amount of marijuana that the patient or the caregiver could purchase, possess, obtain, or grow. The laws of these states are basically inconsistent with the federal laws on medical marijuana to pass a drug test.
The entire issue is complicated by the confusion among human resources managers. These managers are not sure whether random drug testing of their employees would amount to discrimination under the ADA. They are also not sure whether they could question candidates for job on use of marijuana. Further, they do not know whether they should accommodate offsite use or after-hours use of medical marijuana. Such uses could lead to the employees testing positive for drug in the workplace, though there had been no consumption of marijuana in the work site.
Since most business organizations have policies that require the termination of the employee if tested positive for Tetrahydrocannabinol, the main drug ingredient in marijuana or force the employee to participate in a treatment program. The Drug Free Workplace Act of 1988 specifically prohibits companies receiving federal contracts from allowing marijuana use by employees. This Act is in contradiction with the Americans with Disabilities Act. This medical marijuana issue is further compounded by the liability on the part of the employer. If an employee had consumed marijuana and a customer is affected in any way by the actions of the employee, the employer would be sued by the customer and not the employee.
The latest ruling by the Suprement Court in California in 2008 in the RagingWire Enterprise Solutions that the employer need not accommodate medical marijuana use either in the workplace or outside is of great significance. This ruling is of great significance, requiring employees to pass a drug test under all types of circumstances, overriding medical marijuana laws.
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