Testing positive for cannabis in workplace screenings -- the laws are getting more protective of employees

Excerpted from an opinion piece by Dustin Carlton, Esq., featured in HR Dive

  • The Americans With Disabilities Act prohibits employers from discriminating against employees on the basis of disability, and requires employers to provide reasonable accommodation to employees with disability so they can perform their jobs.
  • Up until recently, courts in states with robust medical cannabis programs such as California, Oregon and Colorado, have been reluctant to offer employment protection to employees, who are prescribed medical cannabis under legal state programs, and who test positive for cannabis during workplace drug screening.
  • They argued that the language in the ADA statute does not protect those who engage in "illegal use of drugs," and since cannabis is still illegal under federal law, the law does not cover those patients.
  • In response, individual states, such as New York, Arizona, Delaware, Minnesota, Illinois and others, have enacted laws that protect medical cannabis patients in the workplace.
  • In addition, a growing number of state courts have recognized an employer's duty to accommodate employees under these state laws.  The trend is heading in this direction.