ILMA Compoundings – November 2018 - 45

Discussing the
details of the
candidate's 'debilitating medical condition'
for which he or she has
a medical cannabis
prescription can create
potential liability,
because a rejected
applicant may claim
discrimination based
on their disability."
edibles and infused oils) while on the
job, even if it is for medical reasons.
Employees do not have a right to
work while impaired by these products - or in plain language, "working
while high." The policy can highlight
that, despite state laws liberalizing
marijuana use, such use is still illegal
at the federal level and state employment laws give employers the right to
maintain drug-free workplaces.
However, because court rulings like
the one I mentioned from Massachusetts might represent the trend moving
forward, employers may consider
whether to make workplace accommodations before taking adverse action
against an employee's off-duty medical
marijuana use. Employers, thus, can
engage in an interactive and iterative

process, answering the question,
"Does medical marijuana use inhibit
the employee's ability to perform his
or her job or pose a significant safety
risk to the employee or others in the
workplace?" If the answer is "yes,"
consider also whether an accommodation would create an undue hardship
for the business.
PRE-EMPLOYMENT DRUG TESTING
While some employers, feeling the
crunch of low unemployment, might
stop testing for marijuana in their
drug-testing programs, doing so may
increase liability risks. My rule-ofthumb has been that an employer
can refuse to hire anyone who fails a
pre-employment drug test, including
for cannabis use, provided the company
requires all applicants to be tested.
In the hiring process, the employer
should inform the job candidate that
the company maintains a zero-tolerance,
drug-free workplace policy and that, if
hired, the applicant cannot use, sell or
work under the influence of marijuana
or cannabis products while at work,
even for medicinal purposes. Employers can tell prospective hires that the
business can refuse to hire anyone who
fails a pre-employment test, including
someone who smoked or ingested
marijuana at home for a medical
reason before the drug test.
However, if the applicant decides to
proceed with the hiring process, then
during the interview process, employers should avoid, as much as possible,
any discussion of the applicant's medical issues that led to being prescribed

medical marijuana. Discussing the
details of the candidate's "debilitating
medical condition" for which he or she
has a medical cannabis prescription
can create potential liability, because a
rejected applicant may claim discrimination based on their disability.
Bear in mind that once a job candidate becomes an employee, drug testing
becomes difficult to justify and order
for most job positions. An employee's
right to privacy is generally considered
more important than random drug
testing unless there is a "reasonable
suspicion" that the employee is "under
the influence." While "reasonable
suspicion" might include decreased
productivity and focus, bloodshot
eyes, slurred speech, or the odor of
marijuana or alcohol on the person, a
drug test might not be necessary. An
employer simply could take an adverse
employment action because the visibly
impaired employee is failing to perform
his or her job duties.
One suggestion: Some employees
might complain to you, "It's not fair
- if it's legal to smoke marijuana in
our state, how can I lose my job by
using it?" My answer is simple: The
law should not be interpreted by them
or any other employee as a license to
bring drugs to work or use or sell them
at work. As always, it is important to
consult with your company's counsel.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.

45
ILMA Compoundings – November 2018

Table of Contents for the Digital Edition of ILMA Compoundings – November 2018
