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The Smoke has not Cleared When it Comes to Testing Employees for Marijuana Use

In a recent post, we discussed how several states now prohibit employers from discriminating against employees who use marijuana for medical purposes. So what does this mean for employers who test for marijuana use?

As we mentioned in our previous post, there are some general, broad exceptions to these discrimination laws. For example, employers are generally allowed to refuse to hire or to take an adverse action against an employee when 1) the employer has a reasonable belief the employee was impaired at work, 2) employing a marijuana user would cause an employer to lose benefits under federal law, 3) there is reason to suspect impairment played a part in a work-related accident, or 4) the position is a “safety sensitive” one. But state law is not uniform on these exceptions and could pose liability risks for employers given the unsettled area.

The first question to ask is whether employers that test for marijuana use should require employees to disclose their use of medical marijuana. Ordinarily, inquiries about an employee’s medical condition — and that would include any medications that they are using — would be a violation of the Americans with Disabilities Act unless it is related to their job and necessary for your operation of the business. Because an employee’s medical use of marijuana could interfere with the employee’s ability to do his or her job, an employer may be able to require the employee to disclose the use of marijuana, just as it requires employees to disclose the use of any prescription medication that affects the employee’s ability to work. However, because this is a developing area of law, the answers to questions on this issue are not clearly delineated yet.

Putting in place a blanket policy requiring that employees disclose their medical marijuana use, especially for positions that are not “safety sensitive,” comes with its own risks. First, as a practical matter, disclosing medical marijuana use is likely to be a sensitive subject for any employee because it necessarily begs the question why the individual has been prescribed medical marijuana (e.g., to treat cancer). Second, once this information is conveyed to the employer, the employer can never un-learn it and it may open the door to claims of discrimination or retaliation should that employee, for example, be terminated.

Short of implementing a blanket policy, how should employers approach this issue? Another approach would be to wait until the employee tested positive for marijuana, at which time the employer could request the employee provide documentation that their use was for medical purposes. The downside of this approach is the same as above — that the employer would then be “on notice” that the employee has a particular medical condition or disability, something that employers typically try to avoid. Alternatively, the employer could instruct the company conducting the drug testing to request documentation of participation in a medical marijuana program. If that documentation was provided, the drug testing company would then inform the employer that the employee tested “negative” for marijuana use regardless of the outcome.

At least for the time being, there is no simple answer to these questions. Any drug testing policy will need to consider the laws of the state or states where the employer does business, not to mention the types of jobs that your employees are performing.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.