Legality: The Drug Test

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For those of you who have a federally funded job AND are currently a registered medical marijuana card holder, listen up!

With the Countries widening experiment with marijuana legalization, people are capitalizing within their respected states with cannabis consumption, rightfully so.

A great question is now brought up – If you live in a state where medical marijuana is accepted and you are a legal marijuana card holder, by law you should be allowed to use cannabis as an holistic medication.  However, why are companies still requiring a drug test that tests marijuana for employee’s, if he/she is allowed to legally take cannabis products?

It’s obvious that there is a yet another grey area in this legalization of Marijuana . And because all this legislation is still new, questions need to be answered as cases file up on this situation.

Does your employer have a right to fire you if you can legally smoke?

Under broad state and federal “Drug-Free Workplace” laws —employers have the ability and the right to fire workers for off-the-clock drug use. For any business on the receiving end of a federal contract, the ante is upped: They are required to screen for drugs.

Several court decisions have upheld employers’ decisions to drug-test workers, and then terminate them if the tests reveal cannabis metabolites—the fat-soluble molecules that reveal past marijuana use, often days or weeks in the past.

Case One 

This past July, the Massachusetts State Supreme Court ruled that a woman fired by her employer for using medical marijuana could sue for handicap discrimination. Cristina Barbuto was fired following her first day of work at Advantage Sales for using cannabis, which a doctor had recommended she use for her Crohn’s Disease. It remains to be seen if the decision will be appealed or if she’ll sue, but the decision should have a chilling effect on employers in that state acting similarly.

Concept about drug vs justice.

Case Two

A similar result occurred in New York State, where a taxi driver, fired for lawfully using medical marijuana, must be reinstated.

As the National Law Review reported, an anonymous driver, known only as W.R., had his taxi-driver license revoked by New York City’s Taxi & Limousine Commission—solely for testing positive for cannabis. In an administrative hearing, the TLC was ordered to return his license on the following basis:

Under the New York Compassionate Care Act, certified patients may not be subject to penalty or denied any right or privilege solely for the certified use of medical marijuana. Because the patient certification is analogous to a prescription, the certified use of marijuana could not constitute an illegal drug use that would serve as the basis to revoke a license.

Further, certified patients are deemed to have a disability under the New York State Human Rights Law. Because the New York State Human Rights Law prohibits discrimination on the basis of disability, as does the New York City Human Rights Law, the driver had additional protections against revocation of his license.

This particular interpretation of the law still needs to be tested in other states, including California, where a landmark Supreme Court case upheld an employer’s right to fire legal cannabis users.

It addressed a licensed contractor, not an employee—and most importantly, at a time when 65 million Americans live in states where recreational cannabis is legal, the decision pertains to medical marijuana only.

We’re on a path towards real cannabis freedom—that is, the right to exercise a legal privilege without fear of losing your job.

 

 

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