In the latest salvo in an evolving legal issue, a federal court in Arizona ruled against Walmart in a recent lawsuit for terminating an employee who possessed a valid medical marijuana card after a drug test of the worker came back positive. On the issue of cannabis use by employees, employers are having increasing difficulty reconciling their duty to make reasonable accommodations for employees suffering from disabilities with their drug screening policies. Employers can and should take action to prevent impairment at work. But how should an employer in a state where medical cannabis is legal handle an employee who tests positive in a drug screen but produces a valid authorization for use of medical cannabis? To date, with certain exceptions, most courts have permitted an employer to refuse to hire a candidate or to enforce discipline against an employee who tests positive for cannabis, despite a valid authorization to use it for medical purposes. However, employees and others are challenging that norm regularly on the state and federal level. Stay tuned.
Savvy employer takeaways: Employers who take action against a candidate or employee based on a positive result for cannabis when the employee has a valid medical authorization and no evidence of impairment should be prepared for a fight. Employees and their lawyers are looking for these cases in many states to try to change the law. Employers need to decide if screening out medical cannabis users is worth the risk of a potentially expensive court battle.
