Medical Marijuana and Drug Testing: Getting into the Weeds

The MRCA Safety and Health Agenda for Roofing Professionals (SHARP) tackles the issue of medical marijuana use.

Marijuana use is now legal to some extent under the laws of most states and in some municipalities.  But marijuana use still is illegal under federal law.  What is an employer to do?

In general, an employer can still consider marijuana use, even prescribed marijuana use, to be a violation of its policy, unless the employer is in one of those few (primarily coastal or western) jurisdictions where that is no longer the case.  Likewise, most employers normally still can refuse to hire applicants and discharge employees who test positive.   Marijuana is a Schedule I controlled substance, meaning that is has no legal uses under federal law.  The Americans with Disabilities Act does not protect the current illegal use of drugs.  Most state medical marijuana laws do not expressly prohibit an employer from discharging or taking any other adverse action against an employee for using medical marijuana. While almost every adverse employment action carries a degree of risk, the risks here appear to be relatively low.

The answer is more complicated if you want to make some exception for marijuana use.  In that case, the answer depends on whether your drug policy is subject to government regulations or customer requirements.

The United States Department of Transportation and the Department of Health and Human Services have long been the standard bearers in the area of drug testing and have long included marijuana as a mandatory substance to be tested.  Even if your company is not directly subject to these regulations, many state and federal laws incorporate by reference DoT and DHHS procedures and requirements.

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