As more and more states legalize marijuana for personal or medical use, employers have grown increasingly concerned about what they can and cannot do to enforce their existing drug policies.
A federal court in New Mexico has dismissed a case brought by an employee who was terminated after testing positive for marijuana, despite the worker having a medical marijuana card. The worker had claimed disability discrimination.
The lawsuit is a victory for employers who maintain a zero-tolerance policy towards drug use, even if it’s not being done at work.
In the case, Garcia vs. Tractor Supply Company, a new employee at a New Mexico company had told the hiring manager during his job interview that he was using marijuana for medical purposes (as allowed by state law) to alleviate his Aids symptoms.
Despite that, he was hired and, like all new hires, he was administered a drug test, which he failed.
The following day, he was fired in accordance with the company’s zero tolerance towards employee drug use.
Shortly thereafter, the employee filed a lawsuit accusing the company of disability discrimination and that under the Americans With Disabilities Act the employer was obliged to accommodate his medical condition by allowing his medical marijuana use.
The judge disagreed and dismissed Garcia’s claim.
What you need to know
While this case was in New Mexico, the federal court’s ruling mirrors similar cases in other states with medical marijuana laws or outright legal pot use, including California, Washington, Oregon and Colorado.
In each of these states, the highest court in the jurisdiction ruled that employers did not have to accommodate the medical marijuana by job applicants or current employees.
The gist of all these lawsuits and decisions is that even though a state decriminalizes pot for medicinal use, it does not mean that employers have to allow their workers to use it.
All of the courts have also cited the fact that marijuana is still illegal under federal law.
Employers, then, can have policies that prohibit its use on the job, or even if an employee or job applicant tests positive for the drug.
That said, three states – Arizona, Connecticut and Delaware – have laws requiring employers to accommodate medical marijuana users.
So, even if you are located in a state where the law permits you to terminate anyone who fails a drug test, you need to make sure that you are enforcing your policies consistently in order to avoid legal liability.
If you let one of your employees get away with it, you would be eroding your chances of successfully defending a discrimination lawsuit if you fire another worker for medical pot use.
That’s because it might look like you are targeting that employee for punishment because of the underlying medical condition that led them to use marijuana in the first place.
In the above case, the court sided with Tractor Supply Company because it had enforced its policy consistently by terminating all others who had failed the company drug test. It also found no evidence of disability discrimination on the part of the employer.
Employment law attorneys also recommend that you train your managers to not make disparaging remarks about medical pot, particularly when interviewing prospective employees.