Marijuana laws have changed a lot over the past few years. Less than a decade ago, recreational marijuana use was illegal in all 50 states, and only a handful of states permitted medical marijuana. Fast forward to today, where recreational marijuana is legal in 9 states and the District of Columbia, and medical marijuana is legal in 32. Marijuana will almost certainly continue to gain greater legal acceptance in the coming years, which means that employers might want to rethink their marijuana policies.
In fact, a few states have put limitations on an employer’s ability to discipline employees for testing positive for marijuana. In Maine it is illegal for employers to discipline employees for marijuana use outside of work, even if the use is just recreational. In Arizona, Nevada, and New York an employer cannot discipline an employee for using medical marijuana if he or she has the legal right to do so. Employers in these states need to do away with zero-tolerance marijuana screening policies (unless they are required to keep such policies pursuant to federal law, as explained below) as soon as possible.
Even in states that do not punish employers who refuse to hire marijuana users, zero tolerance policies in regards to marijuana use might land an employer in trouble. For example, in Minnesota a job applicant filed a class action lawsuit against a company because of its refusal to hire marijuana users, including those who do so medicinally, claiming that this violated the state’s human rights act. In Massachusetts, a court found that an employee who was fired for her marijuana use, even though this use was to treat her Crohn’s disease, could have brought a claim against the employer for disability discrimination under the state’s anti-discrimination law.
Additionally, employers who refuse to hire employees who test positive for marijuana may find it harder to hire employees. The three states that legalized recreational marijuana in 2017-Nevada, Massachusetts, and California-saw increases of 43 percent, 14 percent, and 11 percent, respectively, for positive workplace marijuana testing. A zero tolerance policy in regards to marijuana may leave employers in these states and elsewhere with a relatively small pool of candidates.
There are some employers who are required to perform periodic marijuana screenings on employees pursuant to federal law, mostly in industries where heavy machinery is used. These employers should, obviously, continue to perform these screenings. In light of the hostility from the current administration towards marijuana legalization, it seems likely that these marijuana screening laws will remain in place for the foreseeable future.
Based on my research, no employer in Illinois has suffered legal liability by maintaining a zero tolerance policy for marijuana use. However, it is not difficult to see how such a policy could land an employer in trouble. An employee who has a medical marijuana card and needs to use marijuana to treat a condition could argue that being disciplined for this use is a violation of the Americans with Disabilities Act. Therefore, I encourage employers to revise zero-tolerance drug testing policies to make an exception for employees who have the right to use medical marijuana. Feel free to contact me for help doing this.
