With 16 states allowing prescription usage, circumstances widely vary.

Until recently, it has been fairly well understood that an employer can require pre-employment drug testing and refuse to hire someone who tests positively for illegal drugs. However, changes in the law with respect to the use of marijuana for medicinal purposes have made it difficult for employers to know how far they can go to maintain a drug-free workplace.

Unfortunately, employers will likely be in a difficult position for some time. This is because of the current conflict between federal and state law. Under federal law, marijuana continues to be classified as an illegal drug and its use is subject to criminal penalties. Presently, however, 16 states and the District of Columbia have adopted statutes permitting the use of marijuana for medicinal purposes. In most cases, the laws that permit the use of medical marijuana simply prohibit an individual from being prosecuted for such use and permit possession of a limited amount of marijuana.  However, some state statutes go much further. For example, Arizona law specifies that employers may not discriminate against registered patients, unless that employer would lose money or licensing under federal law.

Advising an employer in the current legal environment is difficult. What you can and can't do as an employer is largely governed by state law. Here is a quick guide to help you identify whether you need to be concerned.

Legal Issues With Medical Marijuana

There are two primary issues associated with the use of medical marijuana. First, may an employer refuse to hire an individual who tests positive for medical marijuana?  Second, must an employer provide a "reasonable accommodation" for an employee who uses medical marijuana?

Thus far, most state statutes don't address employment issues associated with medical marijuana. However, as noted above, the state of Arizona specifically provides that an employer may not discriminate against an employee who uses medical marijuana.  Similarly, the state of Rhode Island statute prohibits an employer from refusing to employ an individual "solely for his or her status as a registered qualifying patient."  Likewise, the state of Montana's statute, while not addressing employment specifically, states that a qualifying patient may not be penalized in any manner or be denied any right or privilege due to the medical use of marijuana.

The news is better in California and Michigan, where courts have ruled that medical marijuana patients cannot sue for employment discrimination.

The issue of "reasonable accommodation" arises in connection with state laws protecting the disabled. Many such laws state that an employer must make a "reasonable accommodation" for a disabled person in order to protect the disabled person's ability to hold his or her job. In a recent case in the state of Oregon, a court ruled that Oregon employers might have to make reasonable accommodation for disabled workers, invoking the protection of Oregon 's Medical Marijuana Statute because of the requirements of the Oregonians with Disabilities Law.

On the other hand, a Montana court recently ruled that an employer's failure to accommodate use of medical marijuana did not violate Montana's Human Rights Act.

Medical Marijuana States

Currently, the following states permit the use of medical marijuana: Alaska, Arizona, California, Colorado, District of Columbia, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.  Additionally, the following states have legislation pending that would permit the use of medical marijuana: Illinois, Massachusetts, New Hampshire, New York, Ohio, and Pennsylvania.

The current thinking is that most states that allow the use of medical marijuana will not require employers to hire users. However, there is sure to be litigation before this question is resolved in all states. If your business is located in a state that permits the use of medical marijuana, it is important that you consult with an attorney to know the extent of your current rights as an employer.

Michael P. Coyne is a founding partner of the law firm Waldheger Coyne, located in Cleveland, OH. For more information of the firm, visit: www.healthlaw.com or call 440.835.0600.