SONY DSCIt’s common practice for a business to have a drug testing policy. The policy usually states that a positive test result will cause the employee to be terminated or the job offer to be rescinded. Ten or fifteen years ago that policy could have easily been applied and upheld in court. Today’s environment, however, isn’t nearly so simple. It can be confusing to know what to do with a positive drug test when you consider the conflicting state vs. federal marijuana legalization debate. Today’s regulations protect against genetic inquiries (GINA) and require disability accommodation discussions (ADA) that can further complicate things. Employers can no longer have blanket policies that always have the same result for a positive drug test because in doing so they can accidentally find themselves violating the person’s rights.

Consider the current lawsuit that was filed in Massachusetts, Barbuto vs. Advantage Sales and Marketing. Cristina Barbuto was hired at Advantage Sales and Marketing. A drug test was administered as part of the company’s new hire process. Ms. Barbuto failed the drug test and therefore, was terminated from her position on her first day of employment. Since Ms. Barbuto’s doctor had prescribed marijuana as a medical treatment for her diseases, she filed a discrimination suit. The premise of the case is that the employer did not accommodate her disability and that the employer interfered with her rights since the state allows medical marijuana. As an employer, it can be challenging to know where the line is regarding medical marijuana and drug testing policies.

Here are some tips to consider that will help keep you proactively compliant and out of court in these new case filings:

  1. Research your state’s regulations regarding marijuana use and legality.
  2. Re-evaluate your drug testing policy to make sure that it complies with state and federal regulations while also allowing for disability accommodation exceptions if needed.
  3. Remember that safety is key. Legal or not, employers are not required to permit marijuana use while on the job.
  4. Think about performance and not your opinion on whether they should be allowed to use marijuana or not. If your state legalizes marijuana or permits medical marijuana use then be sure you hold all employees to the same standards for performance.
  5. Stay abreast of developing cases and lawsuits. The states and federal courts will try to untangle conflicting messages by making court rulings. Those rulings will determine how employers must deal with legalized marijuana and medical use of marijuana. Stay up to date on these cases so you can continue to adapt your policies and procedures to be compliant.