Workplace Policies and Medical Marijuana Cards

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Question: I conducted a random drug test at my business. Two employees tested positive for marijuana: one has a medical marijuana card, the other does not. My business requires employees to be alert and full functioning. Can I treat them the same or must I handle each differently as a result of the medical marijuana card?

Answer: Many employers are confused about how to handle a positive test result for an employee that presents a medical marijuana card. An employer cannot discriminate against an employee that is a cardholder but marijuana, like most pain medication, have side effects that concern employee safety. Physicians prescribe drugs because they believe the benefit to the patient is greater than the risk of the side effects.

For federally regulated businesses (HHS, D.O.T., NRC), the decision is clear. Marijuana remains a schedule-1 drug under the Controlled Substances Act of 1970 and is illegal to possess, use, sell or distribute.

For all other businesses, it falls squarely on the employee’s job duties and the employer’s workplace policy. The workplace policy should be clear about the use of any drugs that have the ability to affect an employee’s sense of time, distance and reaction time to emergencies. Given the effects of these drugs on a person’s ability to perform safety-sensitive job functions, there is a safety risk to the employee and their coworkers.

The Occupational Safety and Health Administration (OSHA) was created to set and enforce safety standards and hold employers accountable for compliance. Workplace accident, injuries and fatalities can be devastating to employees and their families and fatal for the business. Consider the course of action that is best for all your employees: Update your workplace policy and put employee safety first.

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