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WHAT SHOULD AN EMPLOYER DO WHEN AN OTHERWISE QUALIFIED APPLICANT FAILS A DRUG TEST WHILE USING MARIJUANA FOR MEDICAL PURPOSES?

First and foremost, CHECK STATE LAW!  This remains a troubling issue for employers in states that have enacted medical marijuana laws and/or laws allowing for recreational marijuana laws.  We have written on this perplexing issue in the past focusing on the Colorado Supreme Court’s decision which held that state’s protection of employees who are engaging in “lawful activities” did not shield an employee using state-law protected medical marijuana from termination.

Last week a Connecticut federal court judge issued a decision for employers concerning Connecticut’s Palliative Use of Marijuana Act (PUMA). The federal judge granted summary judgment in the employee’s favor in connection with her PUMA claim.  The court concluded that the Company violated PUMA by rescinding the job offer based on a positive pre-employment drug test because was a “qualifying patient” under Connecticut law.

In so doing, the court rejected the Company’s argument that its zero-tolerance policy complied with the Drug-Free Workplace Act (DFWA), which requires federal contractors to make a “good faith effort” to maintain a drug-free workplace.  The federal judge concluded that the DFWA does not prohibit federal contractors from employing someone who uses medical marijuana outside of the workplace.  The emphasized that PUMA does nothing to limit an employer’s ability to prohibit the use of intoxicating substances during work hours, but it does protect a “qualifying patient” from an adverse employment action for using marijuana “outside of work hours and in the absence of any influence during work hours.”

PLEASE NOTE: this is an area of the law that is not yet settled.  And that there will be different results in each state as state laws on marijuana use vary greatly—-and judicial interpretations of these laws will also greatly vary.  Before proceeding to enforce your drug-testing policy against individuals purportedly using marijuana for medicinal purposes, you are well-advised to review all applicable state laws.  Of course, feel free to contact PSB if you have any questions on this at www.psb-attorneys.com.

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