Prescription medication users cannot be discriminated against or unfairly disciplined by their employers for using their prescriptions legally. However, private sector employers do have more leeway in determining their own drug testing and drug use policies. Where does medical cannabis fall in all of this?
Medical cannabis regulation is a state-bi-state matter. For example, some states with active medical cannabis programs do not have any workplace protections for either the public or private sector. Others protect public sector employees, while a small handful protect both public and private sector workers.
No Protections at All
In states with no workplace protections for medical cannabis users, both public and private sector employers are allowed to establish their own policies. They can choose to test for THC or not. They can choose to ban medical cannabis consumption on the job.
The thinking in such states is that employers need the freedom to develop and implement policies they feel maintain the highest standards of safety and quality. If they feel that a medical cannabis user could jeopardize either one, written policies against such consumption could be enforced.
Public Sector Protections
Once states begin introducing workplace protections for medical cannabis users, things get tricky. How far should the rules go? How much freedom are employers allowed to retain? The questions are not easy to answer. Utah’s rules provide a good example of the struggle.
The operators of the Beehive Farmacy in Brigham City, UT, say the state legislature passed a law several years ago prohibiting public sector employers from discriminating against medical cannabis users. The impetus for the law was a suit filed by a firefighter whose job was jeopardized once it was discovered he had a medical cannabis card.
Utah lawmakers told state, county, and local employers in the public sector that they could not treat medical cannabis any differently than any other prescription medication. A public sector employee could not be fired simply for using the drug. Furthermore, job applicants could not be discriminated against based on medical cannabis consumption.
A New Rule This Year
Lawmakers went a step further this year with a new rule applicable to employ discipline. This new rule states that medical cannabis users cannot be disciplined, for matters involving their medications, in any way that is not equal to how employees using other prescription medications would be disciplined. Furthermore, employers can only discipline according to previously written policies. Public sector employees are protected against their employers making things up as they go.
Public and Private Sector Protections
A very small number of states with public sector protections in force have gone on to create additional protections for private sector workers. At the start of 2024, California and Washington state implemented private sector protections – including prohibiting the disqualification from employment after a workplace drug test comes back positive for certain cannabis metabolites.
Other states, like New York, have outlawed marijuana testing in the private sector. Without the ability to test, private sector employers are not so easily able to discriminate against or discipline medical cannabis users.
A Fine Line to Walk
We tend to think of workplace protections only from the employee’s perspective. But it is important that we not lose sight of the employer’s perspective, either. Employers are faced with a ton of liability issues every single day. It only takes one workplace injury to subject a company to a lawsuit worth millions of dollars.
Trying to balance the rights of both employees and employers is not easy. It’s a fine line to walk, and one that most employers would rather not have to deal with.
