I get asked all the time about how being a medical cannabis patient will affect a patient’s employment if they are asked to take a drug test. I am also asked by employers for advice on how to handle employees that are legal cannabis patients that fail drug tests for cannabis. Talk about a gray area.
It seems employees and employers alike are confused about the laws concerning medical cannabis. The Maryland government has not done anything to protect legal cannabis patients which forces everyone to make their own choices and then deal with the consequences.
Choose between State law
and Federal law
Currently under Maryland law there is no protection for patients who fail a company drug screen. Maryland law does not protect cannabis patients the same way that it protects patients that use opiates. Currently if you are prescribed an opiate and fail a company administered drug screen, the company won’t fire you if you produce the prescription. This uneven protection has caused confusion among patients and employers alike.
There have been three cases in the country so far where a patient using legally obtained medical cannabis was either fired from their job or had a job offer rescinded because they tested positive for THC on a drug screen. All three of these patients sued the employer. One case made it all the way to Federal court. All three patients were victorious in their disputes.
In all three cases the employer’s defense for firing or not hiring the patient was that cannabis is against Federal law, therefore they were justified in their actions, even though the patients had not broken any state law.
The federal judge who presided over the case that made it to a federal court stated in his decision that the case was making him choose between State and Federal law. He sided with the state law as the patient had followed all the state’s requirements to obtain their medicine. This one case started a panic in Human Resources departments across the country. It has really started a lot of conversations that we need to have as a society.
Should your employer fire you?
The issue is more complicated than it appears on the surface. For instance, cannabis is legal in several states in this country. For argument’s sake, let’s say you live in Maryland but aren’t a legal medical cannabis patient. You take a trip to Las Vegas, Nevada, where cannabis is legal and recreational if you are 21 or older. While there you do your best Cheech and Chong impression and indulge while enjoying your stay. A week later you return home to Maryland and go to work. Later that week you are asked to take a random drug test by your employer.
It’s been days since you consumed any cannabis and you certainly didn’t work under the influence. You legally consumed cannabis while on your trip to Nevada, hell, there were organized dispensary trips run by your hotel. You fail the drug test. Should your employer fire you? Before you answer let’s ask these questions.
Did you break any state law in Nevada or Maryland?
Did you perform at a less than satisfactory level at your job?
This scenario alone raises several questions that touch on many issues including personal freedom. I have never called out of work because I smoked too much cannabis the night before, but I have called out a few times because I drank too much alcohol. The days I did go to work hungover I’m sure my productivity was next to nil. Do you think that an employee who is on a prescribed opiate is productive at their job? I believe it depends on the employee. What’s the point of random employee drug testing anyway? If an employee is doing a good job and is in good standing with the company, what does a random drug test provide other than a possible complication?
As an employer I don’t care what my employees do on their own time. We all have lives to live and choices to make. All I ask of my employees is that they work hard and follow our process and procedures. We are measured by our work, not by what’s in our bodies. Measuring an employee by what medicine they decide to legally take is as discriminatory as measuring an employee by the color of their skin, religion, or sexual preference, all of which are protected by law.
Do you hire some who tested positive for THC?
Several companies are having trouble hiring desirable, qualified candidates because they fail the drug screen for THC. Here’s another real-life scenario that plays out daily costing companies not only top-notch talent but thousands of dollars.
Keep in mind that a perspective employee only takes a drug test after they have navigated the interview process. These are people who’s resumes were good enough to get noticed and then had to probably pass a phone interview and at least one in person interview if not more. The company has met and spoken with the applicant several times during the process and wants to offer the applicant a position.
They are obviously impressed or happy with the applicant, their qualifications and demeanor. They send the applicant for a drug screen and the applicant fails the test, testing positive for THC. The rest of the applicant’s background check comes back clean. No arrests, good references, verifiable employment and education history. The only mark against the applicant is the failed drug screen for THC.
Do you offer this applicant employment?
What if the applicant is a legal cannabis patient?
For many Human Resources professionals their company’s policies force them to not offer applicants who have failed the drug screen for THC. No exceptions. This frustrates many in the Human Resources industry as they have spent time and money recruiting, interviewing, and testing these applicants to find the best possible applicant only to lose them to a positive THC test. Does a positive drug test for THC really change an organization’s opinion on someone they’ve already vetted? Should it? Many companies don’t do drug screening at all. I know of at least 5 Fortune 500 companies that have no drug screen whatsoever. Some do business in Maryland. They aren’t hard to find.
They measure their employees on their work, honesty, and integrity and hire great applicants all the time. They trust their people and process to bring on quality talent.
leads to big problems...
These two scenarios alone highlight a few of the issues with current laws and policies. I am not a lawyer, but I have been told by several practicing attorneys that in either scenario the employee or applicant could file suit if they were legal patients. The first scenario could also file a suit even if they weren’t a legal cannabis patient as they did not break any state law. This possibility leaves companies in a difficult position with no real guidance from the state.
Many have taken THC off their drug screens but don’t release that information. That practice still discourages some top talent from applying to that company for fear of the dreaded drug screen but solves the issue with current employees.
Until laws are made to protect legal cannabis patients. employees and employers are left with little guidance surrounding medical cannabis issues and that is not good for anyone.