When it comes to concerns about medical marijuana, the question we often hear is “to drug test or not to drug test?” This is a question that employers often ask themselves without any direct and clear answer.  The recent increase of medical marijuana provisions is just another component to add to this ever-pressing guessing game. Discussions with numerous attorneys have shown various perspectives and despite these discussions, many of us still feel in the dark on the most appropriate answer.  In a recent article published by the National Law Review on June 20^th, it is increasingly apparent that the topic of medical marijuana in the workplace has none the further become less complex.

“In a recently issued trial court decision, Callaghan v. Darlington Fabrics Corp., a Rhode Island Superior Court justice held that an employer could not deny employment to an applicant licensed under state law to possess and consume medical marijuana solely because the applicant would be unable to pass a mandatory pre-employment drug test. The decision, which granted the applicant summary judgment against the employer, recognizes—for the first time in Rhode Island—a private right of action for medical marijuana “cardholders” to seek damages for discrimination due to their status as medical marijuana patients by schools, landlords, and employers.”

http://www.natlawreview.com/print/article/positive-no-more-rhode-island-employers-need-to-think-twice-denying-employment-based

Of course, the new ruling is expected to be appealed however, the fact still remains: a court found the employer in the wrong when they refused employment based on the use of medical marijuana.  On that note, you might be saying “BUT WAIT!  That was Rhode Island and this is California!” Indeed it is, which is why much can be said from California because it has a very large employer/employee population.  This still begs the question though- “So what to do in these situations?”  Unfortunately the only real answer is to wait and see, keeping in mind that “no state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law.” (Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal. 4th 920, 926; citing 21 U.S.C. §§ 812, 844(a)). Currently some situations such as transportation jobs, the law requires an employer to test for marijuana.

So how do we answer the question “to drug test or not drug test?” Well, the best advice we can provide is to seek legal counsel, and remember should you decide to drug test, we are always here to help.

The information provided is for general interest only and should not be misconstrued as a diagnosis, prognosis or treatment recommendation. This information does not in any way constitute the practice of medicine, or any other health care profession. Readers are directed to consult their health care provider regarding their specific health situation. Marque Medical is not liable for any action taken by a reader based upon this information.