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Marijuana Legalization vs. Employee Drug Tests

By Marlisse Silver Sweeney
September 02, 2014

As marijuana laws change throughout the country (on July 5, New York became the 21st state, along with the District of Columbia, to legalize pot's use for certain medical conditions), how should employers handle positive drug tests? In a recent blog post, Jordan Schwartz of Epstein Becker & Green weighs in on the issue.

“Courts have generally upheld employers' right to discipline employees, including terminating their employment, when the employees' marijuana use violates drug-free workplace policies,” says Schwartz. However, he notes that certain states such as Arizona, Delaware and Connecticut prohibit employers from firing or not hiring someone based on a positive drug test.

Additionally, Schwartz says other statutes may come into play in this issue, such as those that prevent employers from taking action against employees because of their lawful, “off-duty” activities, as well as the Americans with Disabilities Act (ADA). “Employers with facilities in states that allow medical marijuana use may need to provide a reasonable accommodation under the ADA for employees with a valid doctor's authorization,” he explains.

Schwartz suggests rewriting employment policies and handbooks to include marijuana in drug-testing policies, so all employees are clear about the consequences of a positive drug test. He also says it may benefit employers to focus not on a positive or negative drug test per se, but “on the employee's impairment on the job and approach the situation in the same way as ' an employee's impairment from alcohol or prescription drugs.”

' Marlisse Silver Sweeney, Law.com

'

As marijuana laws change throughout the country (on July 5, New York became the 21st state, along with the District of Columbia, to legalize pot's use for certain medical conditions), how should employers handle positive drug tests? In a recent blog post, Jordan Schwartz of Epstein Becker & Green weighs in on the issue.

“Courts have generally upheld employers' right to discipline employees, including terminating their employment, when the employees' marijuana use violates drug-free workplace policies,” says Schwartz. However, he notes that certain states such as Arizona, Delaware and Connecticut prohibit employers from firing or not hiring someone based on a positive drug test.

Additionally, Schwartz says other statutes may come into play in this issue, such as those that prevent employers from taking action against employees because of their lawful, “off-duty” activities, as well as the Americans with Disabilities Act (ADA). “Employers with facilities in states that allow medical marijuana use may need to provide a reasonable accommodation under the ADA for employees with a valid doctor's authorization,” he explains.

Schwartz suggests rewriting employment policies and handbooks to include marijuana in drug-testing policies, so all employees are clear about the consequences of a positive drug test. He also says it may benefit employers to focus not on a positive or negative drug test per se, but “on the employee's impairment on the job and approach the situation in the same way as ' an employee's impairment from alcohol or prescription drugs.”

' Marlisse Silver Sweeney, Law.com

'

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