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What every employer should know about "Medical Marijuana," workplace safety and drug testing

An Important Message from Russell Kamer, MD:

Now that the first marijuana dispensaries have opened in New York State, businesses will start to encounter state sanctioned marijuana use. Employers should develop policies to address this issue. Although medical marijuana use is now legal, employers still have the duty and the right to maintain a drug-free workplace. Different companies may have different policies depending on their type of business.


DOCTORS CANNOT ACTUALLY PRESCRIBE MARIJUANA. Marijuana is classified by the United States Drug Enforcement Agency as a Schedule 1 drug. Doctors are forbidden from prescribing schedule 1 drugs. Under the New York Medical Marijuana statute, health care providers recommend marijuana and certify patients who qualify for participation in the program. Some may view this distinction as merely a semantic difference, however it is a critical point.
Marijuana is still illegal under Federal law. A doctor who prescribes marijuana could be found in violation of Federal law.

FEDERALLY REGULATED BUSINESSES: Marijuana use is illegal under federal law. Therefore, for all federally mandated tests such as DOT drug tests, having a New York State marijuana Card is not considered a legitimate medical use. When a driver tests positive for marijuana, the Medical Review Officer (MRO) interviews the driver. If the driver's excuse is that he or she is enrolled in a medical marijuana program, the MRO will report the test as positive. Under DOT guidelines, the test is considered positive and there is no further discussion. The driver must be removed from safety-sensitive functions. Before the driver can return to DOT job functions, the driver must undergo a Substance Abuse Professional evaluation, comply with the recommended treatment program and have a negative return-to-duty test.

NON-FEDERALLY REGULATED: Employers have an option as to how to handle card carrying marijuana users. An employer may continue to have a policy that bans all marijuana use or may develop a policy that permits use by employees who have a marijuana card. Businesses need to consider whether or not use of marijuana could impact the ability of employees to safely perform their jobs and whether a drug- free workplace is important to the company. The more safety sensitive the workplace, the stronger the argument is to exclude all drug use from the workplace.

What happens when an employee tests positive for marijuana on a NON-FEDERAL test and presents a valid Marijuana card? In the absence of any specific employer guidelines, the common MRO practice is to let the urine donor know that this is an employer policy issue and that the MRO will report the result as positive. It is then up to the employer how to handle this situation. It is best to consult your human resource specialists and attorneys now to develop a policy before you have a positive test.

CAN EMPLOYERS DISCIPLINE EMPLOYEES WHO TEST POSITIVE FOR MARIJUANA AND HAVE A STATE PERMIT TO USE IT? So far, the answer is yes. The latest legal precedents from California and Colorado have upheld the employer's right to fire employees who use medical marijuana; however, the law is evolving and companies should consult attorneys who are well versed in the latest developments in this area.