Is medical marijuana OK in the workplace?

In this edition of In the Trenches, Acme considers an employee with a prescription for a pharmaceutical.

Al Colloyd served in the military overseas in the early 1980s. His role was as technical specialist working with IT infrastructure, a job he learned and performed well. He continued doing that work for years after his discharge.

While overseas, however, Al sustained an injury, which had consequences years later. He now suffers from ever-worsening chronic back pains and muscle spasms. When his condition finally prevented him from working, Al qualified as disabled under the state’s Fair Employment and Housing Act. He also qualified for governmental disability benefits. This arrangement allowed him to avoid institutionalization and homelessness.

A physician had been treating Al with a series of medical techniques in search of anything that would provide effective relief from the pain and spasms. These efforts were largely unsuccessful. This situation effectively prevented Al from having a self-reliant and functional life that included working at an IT job he enjoyed and having a social life.

Al spent a lot of time apartment-bound, frustrated at what life had done. With no other creative outlet, he spent a lot of time online, learning the cutting-edge intricacies of source-code programming that allowed him to develop a personal Web site worthy of anyone’s admiration, if not awards.

At one of the office visits, Al’s physician recommended medical marijuana because none of the standard pharmaceutical-based treatments had yet provided the desired outcome. This remedy gave him relief sufficient to allow getting back into life. He could now go shopping, cook real food and drive a car. Confident that the pain was under control and would remain tolerable, Al began an intense job search.

The gray area exists in a state that permits the medical use of marijuana but has no law specifically addressing whether an employer can refuse to hire a disabled applicant who uses marijuana for medical reasons.

At the last of his several interviews at Acme, he was offered a job as lead system administrator, a position for which, as a result of years of study and research, he had become highly qualified, despite not having a formal degree. After he accepted the position, Mary Harper, Acme’s HR person, told Al he would need to pass a pre-employment drug test.

Al gave the clinic that performed the testing a copy of the physician’s written recommendation and the prescription for medical marijuana. Three days later, he started the new job and quickly became a contributing member of the Acme economy.

That same week, the clinic called Al to say that the drug test was positive for THC, the active ingredient in marijuana. The next day, Mary informed Al that, according to long-standing company procedures, a positive drug test result mandates a suspension from work. Al handed Mary another copy of the physician’s recommendation and prescription, explaining that medical marijuana was the only remedy that alleviated the chronic back pain and spasms.

Mary wasn’t sympathetic, but agreed to call the physician to verify the prescription. Mary said that she’d let Al know Acme’s final decision regarding continued employment. Two days later, Acme’s CEO informed Al that the corporate decision was immediate termination.

Al filed suit alleging that Acme violated the state’s Fair Employment and Housing Act and terminated him/her in violation of public policy.

How could this situation have been prevented? Why should a prescription for medical marijuana be the kiss of death when job hunting? Is strict adherence to perhaps outmoded corporate procedures a good policy in light of more recent medical research? Is discrimination on the basis of medical condition justifiable?

An attorney says:

Let’s get one thing straight. Acme didn’t terminate Al because of his medical condition. He was terminated because he didn’t pass a pre-employment drug test because of his use of marijuana for a medical condition. Whether that termination was legal depends upon the state in which Acme is located. Under federal law in the United States, the use of marijuana is illegal. Despite that ban, some 13 states have passed laws addressing the medical use of marijuana. Each of those laws is unique to that state.

For example, California immunizes from criminal prosecution both the user of marijuana for medical purposes and the physician who recommends the drug. Arizona, on the other hand, requires employers to accommodate the medical use of marijuana in the workplace. Rhode Island prohibits an employer from refusing to employ a person who uses marijuana for medical purposes.

If Acme is located in a state that doesn’t authorize the medical use of marijuana or prohibit an employer from discriminating against a marijuana user for medical purposes, Acme acted well within its rights in terminating Al for failing the drug test. If on the other hand, Acme is located in Arizona, it might have violated that state’s law by not accommodating Al’s medical use of marijuana.

The gray area exists in a state that permits the medical use of marijuana but has no law specifically addressing whether an employer can refuse to hire a disabled applicant who uses marijuana for medical reasons. But given the federal ban on marijuana use for any purpose, an employer in that kind of state likely would be within its rights in terminating an employee such as Al.

Right or wrong? Arguments abound on both sides of the question. While there’s substantial evidence that marijuana alleviates symptoms for some cancer patients, opponents of the drug no doubt envision the likely consequences of a bunch of potheads staffing the assembly line.

Julie Badel, partner, Epstein Becker & Green, P.C.
(312) 499-1418

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A plant engineer says:

This situation could have been avoided if Al would have disclosed the fact that he was taking marijuana on the recommendation of a physician and has a valid prescription. This disclosure could have taken place during the interviews that Al had with Acme. If the information is known up front, the situation is avoided, or at least out in the open.

A prescription for medical marijuana is the “kiss of death” when job hunting because the use of marijuana is illegal in most states. The use of marijuana for pain relief would seem to have the same effect on an individual that recreational use would have. Much like drinking, marijuana can dull one’s senses and cause one to be less responsive. If you can’t operate machinery or drive while using marijuana, why would a company want to take a chance of having someone on their payroll that uses marijuana legally? Acme should not have to be exposed to that kind of liability.

It’s great that the medial use of marijuana helps Al with his pain relief. Acme must protect its employees and stockholders and try to keep the workplace clear of drugs that will hinder performance. Discrimination on the basis of medical condition is justifiable, but might not be legal. Should a company have to hire or keep a person that requires strong drugs to allow one to function? People aren’t allowed drink or use drugs on the job for a reason. It promotes safety for the whole facility.

To make exceptions could cause safety to suffer and place the patient or others in danger. If Al got hurt on the job, could anyone prove that his use of medical marijuana wasn’t somehow a factor in his injury? Yet, Acme would have worker compensation claims and expenses to deal with anyway. Acme should have been told up front.

Jeffrey L. Strasser, Bacova Guild
(540) 863-2656

An academician says:

I don’t see much hope for Al in this situation. Even though he’s using marijuana for medical purposes, the company can legally terminate him for using it. The argument is based on that assumption that the use of this substance could impair the user’s judgment and could cause serious accidents or errors. Companies usually take a hard line on this (if it’s in your blood, you’re out) because companies don’t want to get involved in attempting to decide how much marijuana needs to be taken to impair judgment or what jobs or tasks might be affected by the use of this substance. It’s doubtful that the company could sort this out, so the best bet is to hold to the hard line.

Al should have checked with HR before he signed on. If he knew that he had to pass a drug test, then he had a couple of options. One is not to take the job. Another is to go back to his medical people and keep exploring other substances that could give him relief and which were not illegal. It’s possible that the company would be willing to make some accommodation for his disability, and this accommodation in combination with a reasonably effective medication might have allowed Al to have a successful career with Acme.

Professor Homer H. Johnson, Ph.D., Loyola University Chicago
(312) 915-6682