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Hidden Risks of Zero-tolerance Policies

As the use of medical marijuana has grown more widespread, understanding employee rights and employer responsibilities regarding medical marijuana use has become more complicated. Rather than attempt to navigate the complicated laws regarding marijuana use, some employers might want to avoid the confusion and opt for a zero-tolerance approach. However, some recent court cases show why screening potential employees for or questioning current employees about medical marijuana use might not be as simple as it seems.

In June, the Colorado Supreme Court upheld a lower court decision in which an employer fired a quadriplegic employee for off-duty marijuana use, even though the employee had a prescription for medical marijuana to treat muscle spasms. Colorado has a “lawful activities” law that prohibits employers from firing employees who engage in lawful activities while away from work. The court ruled that, since marijuana use is always illegal under federal law, it cannot be considered a lawful activity, and the company was therefore within its rights to terminate the employee for violating the company’s zero-tolerance drug policy.

On the other hand, other states, such as Arizona, Delaware, Minnesota and Nevada, protect employees who use medical marijuana. These states explicitly prohibit employers from firing employees for their off-duty use of medical marijuana, as long as employees otherwise comply with state law. Still, while these states demand that employers make “reasonable accommodations” for their employees’ medical needs, employers don’t have to extend accommodations that pose a threat to people or property, or prevent employees from completing their essential job tasks.

In short, employers that inquire about marijuana use when screening employees and prospective candidates may expose themselves to discrimination claims. Given the overlapping, varied and often contradictory laws regulating the use of marijuana, employers ought to consult with legal counsel before adopting or implementing zero-tolerance drug policies.

Filed under: HR — Jillian Bender-Cormier @ 7:48 pm August 26, 2015