May 042008
 
Authors: Kathleen Harward

The best part of being a lawyer is getting to answer interesting questions. This week, one was asked by a student using medical marijuana to treat chronic migraines. “Can employers fire me, or refuse to hire me, when I test positive on their drug tests?”

First, most employees, who are not in union or government jobs with added procedural protections, are “at will” under the law, meaning the employee or the employer can end employment at any time without a reason.

The exception is when the employee falls into a legally protected category and the firing was based on the employee being in that category. We’re all familiar with the usual ones: race, color, gender, religion, age, national origin and disability. Use of medical marijuana isn’t one of them.

The medical marijuana amendment to the Colorado Constitution doesn’t help. While it protects from criminal prosecution under Colorado’s drug laws, it specifically states that it does not require employers to accommodate the medical use of marijuana in the work place.

The Americans with Disabilities Act prohibits discrimination against a person with disabilities so long as the person can perform the essential functions of the job with accommodations — in this case debilitating headaches that can be accommodated with medical marijuana.

This would be a promising argument until you consider that the ADA is a federal law, and, under another federal law, the use of marijuana is still a criminal act.

Think about it. As long as marijuana is illegal under federal law, could you really expect a Colorado employer to be forced to accommodate an employee’s use?

Even if the Colorado amendment had passed with language creating a workplace protection, a Colorado court would still likely have to rule against an employee because of the supremacy of federal law.

Just this January, the California Supreme Court in Ross v. Ragingwire reached this conclusion. In that case, a U.S. Air Force veteran, who used medical marijuana on the advice of his doctor to alleviate back pain caused by previous combat injuries, sued his employer for firing him for a positive drug test. The veteran argued that California’s version of the federal Americans with Disabilities Act gave him protection. The court disagreed.

As long as federal law continues to criminalize the cultivation, possession, distribution and use of marijuana, I don’t see any court forcing employers to employ people who use medicinal marijuana.

But, just for fun, let’s suppose that marijuana were decriminalized at the federal level.

With that obstacle out of the way, you’d have to ask whether you really want courts and the law to take away employers’ discretion. Is it right to force a business to employ medical marijuana users if the employer believes marijuana use will affect job performance?

Users of medicinal marijuana state that they are not impaired by the drug like a recreational user because of their careful and steady use. While I believe this is true in many cases, do we want to mandate a policy across the board?

The ADA, and state versions of it, still require that the employee be able to perform the essential functions of the job. It’s a question of whether an employer should have to prove that an employee is impaired or whether the employer, who owns the business and knows it best, can make a decision based on discretion alone.

This week Congress passed, and President Bush is expected to sign, a law that creates a new category of protected persons: one who has undergone genetic testing. This law will forbid employers from making firing and hiring decisions based on the results of an employee’s genetic testing.

DNA testing is certainly different than drug testing in that we have no control over the results of our DNA tests like we do over a drug test. Courts have upheld the right of employers to require drug testing as a condition of employment.

Even if courts were inclined to also uphold the right of employers to require DNA testing, I don’t think market forces would allow mandated DNA testing to become the norm.

You don’t need laws to keep this from happening. Employees are free to move to the next employer if they don’t want the privacy of their DNA code invaded. I cannot imagine a marketplace in which employees will allow this sort of invasion of privacy to become the norm.

In short, medical marijuana users, you’d better search for an employer who doesn’t require drug testing. And students, please keep bringing us your questions. Yours are all interesting, and they keep us lawyers happy.

Kathleen Harward is the director of Student Legal Services. SLS’ column appears biweekly Mondays in the Collegian. Letters and feedback can be sent to letters@collegian.com.

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