approved drugs. Until marijuana is FDA- tested and approved, medical marijuana recommendations will not be authorized under the CSA.


Case Law: A Growing Grey Area for Medical Marijuana and the ADA While the wording of the CSA and the ADA clearly does not support medical marijuana, states have been pushing forward with it anyway. Te truth is that a growing number of people want to use marijuana for medical or recreational purposes, and they are willing to do so no mater what the law says. Tose people are buting heads with drug-free workplace policies, and taking their employers to court. While employers have won some early victories in court, recent cases are starting to trend towards protecting medical marijuana users, despite the wording of federal law. First, let’s take a look at those early case


law decisions that have supported drug-free workplace policies.


Ross v. RagingWire Telecommunications, Inc. 2008—California Supreme Court Te plaintiff in this case suffered from strain and muscle spasms due to previous work-related injuries. Prior to undergoing a pre-employment drug test, he provided his doctor’s recommendation for medical marijuana. In 2001, aſter he tested positive for THC, his new employer suspended him. In 2008, when the case reached the California Supreme Court, the court ruled that the California Fair Employment and Housing Act does not require an employer to accommodate illegal drug use. Since marijuana remains illegal under the CSA, employers can legally terminate employment for employee medical marijuana use.


Coats v. Dish Network 2015— Colorado Supreme Court In 2010, the plaintiff in this case was terminated from his job at Dish Network


42 datia focus


when he tested positive for marijuana. He sued, claiming that his marijuana use was protected under the state’s lawful activities statute (which protects employees from adverse employment action for taking part in legal activities off-duty). In 2015, the Colorado Supreme Court ruled that, in order for an activity to be protected under the lawful activities statute, it must be legal under both state and federal law. Tus, employers can legally terminate an employee for medical marijuana use, because it remains an illegal practice under federal law. However, not all courts have ruled along


the traditional definition of legal or lawful. Below we will look at a case ruling from 2017 that may prove to reverse the trend.


Callaghan v. Darlington Fabrics 2017— Rhode Island Superior Court Te plaintiff in this case applied to intern with Darlington Fabrics and was notified that she would be required to pass a pre- employment drug test. When asked if she used any drugs that would cause her to fail the test, she responded that she used marijuana for medical purposes. As a result, the company denied her the internship on the grounds that she would be unable to pass a drug test if administered. Te court ruled that the employer erred by refusing employment “solely for his or her status as a cardholder” (quoted from the Rhode Island Hawkins-Slater Act that allows for medical marijuana use). Te court reasoned that “[t]he natural conclusion is that the General Assembly contemplated that the statute would, in some way, require employers to accommodate the medical use of marijuana outside the workplace.” However, the court added that, “[t]he Hawkins-Slater Act shall not permit ‘[a] ny person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.’ . . . If an employee came to work under the influence, and unable to perform his or her duties in a competent


manner, the employer would thus not have to tolerate such behavior.”


Employers Can Test for Medical Marijuana While employers should never take a casual approach to drug testing compliance, they absolutely can continue to test for marijuana without violating the ADA. However, the path forward regarding individual state medical marijuana laws requires thought and care. Consult a drug testing policy expert when reviewing your policy for medical marijuana. Do not take anything for granted, but do not shy away from your rights to maintain a drug-free workplace. While the pro-legalization movement has convinced a growing majority of Americans that marijuana makes for good medicine, it hasn’t managed to change the Controlled Substances Act, the Americans with Disabilities Act, or the simple fact that marijuana impairs its users, hinders their ability to safely operate machinery, and can even make them sicker than before they started to use it as medicine. ❚


Andrew Current, Compliance Director at the Current Consulting Group, LLC (CCG), over- sees research of state and federal laws, manages


CurrentCompliance.org—an on-line state laws database—and serves as the manag- ing editor of the e-newsletter State Drug Testing Laws Monthly, as well as other pub- lications. He has written for many industry publications, such as Oral Fluid Quarterly, The Leaflet: Marijuana Quarterly, DATIA Fo- cus, and the IFDAT Newsletter. CCG speaks at over 60 events annually, including client- customized webinars, iHeart Radio, OH&S, DATIA, SAPAA, NAPBS, and SHRM; and is published in leading industry magazines, blogs, and publications.


fall 2017


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