Can I Fire an Employee for Testing Positive?
By Christopher A. Parrella, J.D., CHC, CPC, CPCOWith the growing legalization of marijuana use in the United States, many employers are wondering if they can still fire employees or refuse to hire new ones who test positive. The short answer is that in most cases they can.
However, as legalization of marijuana use becomes more commonplace, there is a push to bring workplace law into the new era of recreational cannabis use, and that might change how employers choose to test and for which drugs. As of January 2019, marijuana use was still illegal in 17 states. In the remaining states, it is legal for either medical or recreational use.
Most state laws allow private employers to screen job applicants for drug use and many employers conduct drug and alcohol tests as a condition of employment. Some also conduct random on-the-job drug tests or require testing of someone who appears to be impaired on the job. They may choose to include testing for cannabis, or screen only for other drugs that are not legal. However, it’s important for employers to understand that some states give protections to registered marijuana users. That means if they have a legitimate medical excuse, the employer may not be able fire them if they test positive. It’s always best for employers to engage in conversations with employees about their use to ensure accommodations are made, especially if the employee can claim they are using marijuana to treat a disability.
On the other hand, federal agencies such as the Department of Transportation, are required to conduct regular drug testing, including for marijuana because although legal in various states, cannabis is still illegal under federal law. The Controlled Substances Act does not recognize the difference between medical and recreational use of cannabis. Because laws are in flux, employers who want to conduct drug tests would best be served by having a drug testing program in place that is specific to the particular work environment. The program should include a written policy as well as employee education, supervisor training, and an employee assistance program.The written policy can outline whether marijuana use outside of the workplace is, or is not, acceptable and in what instances an employee can be tested and/or terminated based on the results of that test.
As laws change, more employees are challenging workplace rules. Employers would be well- served to know what laws apply in their state and to develop policies that align with those laws, otherwise they might find themselves the target of litigation.
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