Twenty states and the District of Columbia now allow the possession of marijuana for medical purposes. As the medical benefits of the drug become more apparent, employees who use marijuana are increasingly invoking the Americans with Disabilities Act to protect them against discrimination.
Matt Ferner, contributor to The Huffington Post, reported in April 2012 on an employee of the New Jersey Transit Authority, who sued after a drug test revealed the use of marijuana. The test was to determine whether he should be demoted to a non-safety sensitive position. The employee was a registered medical marijuana patient suffering from end-stage renal failure and off-duty marijuana use helped him with his pain. This lawsuit seeks protection for workers in non-safety-sensitive positions who use marijuana outside of the workplace.
Employers have the right to demand a drug-free work environment. Marijuana stays in a person’s system for a substantial period, leaving medical marijuana users at risk of punishment from an employer. One exception to this is Arizona, where an employer may not discriminate against an employee who tests positive, is a registered medical marijuana patient, and who does not have a safety-sensitive job.
Cases that are similar to the New Jersey case have been heard in California, Colorado, Oregon, Montana, and Washington. The employer has won in each case. Because marijuana remains illegal at the federal level, employers can fire an employee who fails a drug test, even in states where the drug is legal for medical use.
In 2012, the Sixth US Circuit Court of Appeals in Cincinnati supported Walmart in the firing of an employee with cancer who was also a registered medical marijuana patient.The American Civil Liberties Union is suing Wal-Mart on the employee’s behalf because they see the case as an intrusion into private medical decisions. The courts hold that employers can set their own policies. Therefore, a drug test that is positive for marijuana use is grounds for dismissal.
Additionally, arguments that are based on an employee’s right to privacy have failed. The decision concerning Curry v. Miller Coors, Inc., was the first to reject claims of discrimination and the invasion of privacy associated with medical marijuana use. Employers have the right to drug test in a fair and equitable manner.
With more states seeing medical marijuana as a viable option, this issue is one that continues to be at the forefront of news reports.
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