Despite twenty states allowing the use of medicinal marijuana and two more – Colorado and Washington – allowing recreational marijuana use, employers remain unaffected. Courts consistently find that employers may terminate employees who test positive for marijuana, regardless of whether employees are using marijuana to treat a disability; whether they were not under the influence on company time; or whether they used or possessed marijuana on company premises. In fact, state courts in Colorado, Michigan, Washington, Oregon, Montana, and California as well as the 6th and 9th Circuits agree on two key points that allow employers the option of continuing zero-tolerance approaches to drugs. First, employees may be disciplined or terminated for marijuana use, despite state statutes prohibiting discipline for engaging in lawful activity outside of work. Second, employers need not accommodate medical marijuana use as a disability-related condition. Marijuana remains illegal under federal law; thus, it does not have the same status as other prescription drugs. Until marijuana becomes legal under federal law or until state statutes allowing medical marijuana explicitly address marijuana in the workplace, employers have the option to continue to ban users of that drug. Employers should update their Drug-Free Workplace Policy and review their drug testing protocols to ensure that it complies procedurally with applicable statutory law and that it is conducted both accurately and with appropriate measures to avoid tort claims for invasion of privacy.
