What rights do I have if I fail adrug test and I have a medical card?

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What rights do I have if I fail adrug test and I have a medical card?

Asked on March 30, 2011 under Employment Labor Law, Washington

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Although residents in 15 states can legally have their doctors prescribe medical marijuana to help them with their pain, their employers however may not be so understanding. Workers have been fired for failing drug tests despite having prescriptions that are legitimate under state law. Such cases are exposing a new legal gray area, with workers complaining of rights violations and company officials scratching their heads over how to enforce a uniform policy for a drug that the federal government has not recognized as having a legitimate medical purpose.

Employees are caught in a no-man’s land. Some have been prescribed marijuana by their physicians and have disclosed this fact when being hired. However many find themselves out of a job after employment drug tests come back positive for tetrahydrocannabinol (“THC”), the active chemical in marijuana. In response to this, some companies have allowed their employees to take a leave if they choose to use marijuana to combat the side effects of treatment for a serious ailment. However, upon their return, the THC must be out of their systems. Most stress that this is for safety concerns. Companies have also fired employees for having medical marijuana registry cards or prescriptions from doctors. In effect, these employees have been terminated for conduct that was legal outside of work.

Yet nothing in the law tells employers what to do. They are left without guidelines. So far only one state, RI, has legalized medical marijuana and has also taken the additional step of saying that it was unlawful to fire someone for using a lawful substance. Some companies have begun to recognize marijuana as a legitimate therapy even though the courts have not yet held that medical marijuana users enjoy “a legally enforceable, fundamental right” to smoke. The fact is that employers in states that have legalized the medical use of marijuana under state law unfortunately remain free to fire employees who test positive for THC. While it is terribly unfair to these patients, at this time it is not illegal.


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