A total of 29 states (and growing), along with Washington D.C., now all allow the medical use of marijuana. Both Washington state and Colorado made headlines in recent years, because of their decision to legalize the use of pot. 15 states have both decriminalized the possession of weed. It’s very likely that more states will take a long, hard look at legalizing, or at least decriminalizing, the possession and use of marijuana.
What is an employer with a drug policy to do? How can you refuse to hire someone for drug use in a state that has effectively looked the other way?
Back in 2013/2014 in Maine, the American Civil Liberties Union of Maine began helping a woman from Pittsfield sue her former employer over allegations that she was denied a job because she is a medical marijuana user. In the lawsuit, filed on behalf of the woman, alleges that she was discriminated against by her former employer (a staffing agency), for no other reason, than she uses medical pot. The woman claims that she uses the drug to ease her pain due to medical conditions including arthritis, spondylosis, two bulging disks and a herniated disk. The Maine woman reports that the staffing agency wanted to put her into a job making smoke detectors, a job she held once before, but in order to go back to work, she had to take a drug test.
So – what’s an employer to do? If your state allows the use of medical marijuana, can you legally refuse to hire an applicant for no other reason? The answer isn’t completely clear, and the courts are starting see more and more cases like this come up. The best thing to do is to become very well versed in your state’s (not to mention Federal) fair employment laws and anti-discrimination laws that may apply. These laws do change, so keeping up with the changes requires a pretty close eye on things. Other alternatives do exist, like your local chamber of commerce or business association. Both of these organizations should be able to provide some guidance as to what you’re likely to face when it comes to the use of marijuana.
If you’re worried about making the right decision in these cases, it certainly pays to have someone on your side that understands the ever-changing employment and anti-discrimination laws. Having a partner on your side that recognizes the value in appropriate screening and what’s legal – and not – in your screening process can save a lot of legal fees, not to mention the time it can take to settle one of these cases. At The Royale Strategy Group, we have in-house legal counsel that can work with our clients to keep them on the right side of the law.
For the woman in Maine and other states, it’s unlikely that she will see her day in court – but make no mistake, her former employer had to spend a lot of time and money to bring this case to a close.
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