Part I of this article provides an overview of the sixteen existing medical marijuana statutes as well as the numerous bills pending across the United States. Most medical marijuana statutes do not provide direct protection against discrimination in hiring or discharge from employment. Yet most of these statutes do specify that an employer need not accommodate a medical marijuana user who uses at work or is intoxicated at work. This raises two important questions. First, does an employer have an obligation to accommodate a medical marijuana user who only uses outside of work, particularly if the person is protected against discrimination based on a disability? Employers have argued that the term “use” at work could include testing positive on a drug screen, even though an employee can test positive days or weeks after the ingestion of marijuana.
Yet the duty to accommodate could also mean that a medical marijuana user who does not ingest marijuana at work, and is not intoxicated or under the influence at work, should be entitled to accommodation like any other person with a disability. The second difficult question raised by these provisions is how to determine if a medical marijuana user is intoxicated or under the influence at work. In Part II of this article, the research on the effects of marijuana use will be reviewed. Although the research points out qualities associated with marijuana use that may also affect job performance, these effects vary considerably across users depending on the frequency and level of use as well as the personal characteristics of the user. Moreover, this research does not provide clear guidance for employers or courts regarding when a medical marijuana user should be protected against discharge based on intoxication or impairment at work.
Part III of this article considers whether drug testing should be used to determine when an employee or applicant is intoxicated or impaired. There are several reasons it should not, beginning with the lack of relationship between a positive drug test and actual impairment. In addition, many states lack requirements as to how drug tests should be administered, which allows for inaccurate and inappropriately interpreted results. As an alternative, impairment testing can give clearer indication of whether an employee is actually fit to work. Parts IV and V of this article demonstrate how a standard for determining intoxication or impairment can be developed from both criminal law and workers’ compensation law. These long-standing methods should assist both employers and courts in addressing the dilemma of what to do with a medical marijuana user who has not engaged in illegal activity, but faces discharge or rejection in the application process, even though he or she has never been under the influence of marijuana at a time when work would be affected….