Can/should health care workers be fired for using appropriately prescribed medical or legally purchased recreational marijuana?

“Whether your employee is driving a truck cross-country or working in your ICU, there is almost always a protection that allows employers to enforce policies to protect those that they’re serving,” … “That applies no matter what the cannabis laws are in your state. You’re dealing with employees that are directly impacting the health and safety of individuals, so the obligation of protecting the people you are serving is paramount.” (A)

“Acceptance of medical marijuana, and the patients who medicate with marijuana, is sweeping state legislatures across the country. Of the 21 states that have passed laws addressing medical marijuana, nine have done so in the past three years. A growing number of Americans appear willing to allow those with chronic illness or pain to alleviate their symptoms with the plant, quite apart from the issue of recreational use, which Colorado and Washington State recently approved.
But even as recreational usage is gaining acceptance, people who medicate with marijuana across most states can still get fired for failing their employers’ drug test. Both Washington and Colorado have legalized recreational marijuana use, but it’s still unclear whether employees’ jobs are protected in those states if they smoke off duty — either for recreation or medical use. In Colorado, for instance, the marijuana law allows employers to impose any drug policies they see fit.
There are a lot of unanswered questions, and it’s time for U.S. lawmakers to clarify how companies should treat these cases. Regardless of a state’s law, using marijuana remains a violation of federal law. This conflict has important consequences in the workplace: Employees are left with no protection and employers with little guidance.” (B)

“Since the passage of Proposition 64 making recreational cannabis legal in California, there has been some confusion among employers as to whether they are required to accommodate an employee’s use or possession of the drug.
What should an employer do, for instance, if a new employee tests positive for cannabis? Since use of cannabis for medicinal purposes has been legal since 1996, what if a worker presents a doctor’s note for it? Are employees now allowed to smoke, vape or nibble cannabis edibles while at work? What if an accident occurs and an employee subsequently tests positive for cannabis?
The short answer is that employers do not have any obligation to accommodate cannabis use…
Although legal issues have arisen over the termination of workers for cannabis use, employers are protected by language in the law.
“Prop. 64 does nothing to change an employer’s right to drug testing or termination. There is a clause specifically written into the legislation that expressly protects an employer’s right to do so….”
“Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions,” the ruling said.
“The law in this case immunizes employees from criminal law but doesn’t change an employer’s drug policy,” Largent said….
However, employers who do not have a well-documented cannabis policy could expose themselves to allegations of discrimination.
“I advise clients to modify their policy if necessary to make clear it’s illegal, giving employees clear expectations,” …
Employers should make it clear that marijuana use is included in a restrictive policy.
“It’s one thing to have a policy; it’s another thing to enforce it,” … “I tell people, you don’t want to have a policy if you’re not willing to enforce it. If an employer is going to test for drugs, they should let the employees know they are going to do it….” (C)

“Q: But what about people with a doctor’s recommendation to use marijuana for a medical condition? Employers can’t prohibit them from taking their medicine, right? Or fire them?
“In California, there are no workplace provisions protecting the rights of medical marijuana patients. There is no law requiring accommodation for medicating on the job or protection from termination.
In fact, the state Supreme Court has ruled that companies can fire workers who fail drug tests even if they present evidence of a doctor’s recommendation for legal medicinal use.
In a landmark case, Carmichael resident Gary Ross was fired after 10 days as a lead systems administrator for a Sacramento firm RagingWire Telecommunications. Ross, an Air Force veteran, made no secret when he was hired – and drug tested – that he had a medical marijuana recommendation for service-related back-pain and spasms. But he was let go anyway as soon as his pre-employment drug test came up positive.
In 2008, the Supreme Court rejected Ross’ claim of job discrimination under the California Fair Employment and Housing Act. It said California’s 1996 Proposition 215 medical marijuana law contained nothing “to address respective rights of employers and employees.”
Four states – Arizona, Delaware, New York, and Minnesota – offer limited anti-discrimination protections for people with doctors’ recommendations for medical marijuana use. The rules require that employers demonstrate impairment on the job rather than just a positive test for pot, which can stay in the system for days or weeks.” (D)

“On November 8, 2016, Florida voters approved the legalization of medical marijuana. Although not legal under Federal law, the effect of voters amending the Florida Constitution to allow for such use creates an immediate conflict of laws.
Many health care professionals ask what will be the impact on them of medical marijuana. On January 17, 2017, the Florida Department of Health issued its first draft of proposed rules for regulation…
Can DOH discipline the license of a physician, nurse, or other health care professional for use of medical marijuana?
Yes. This is where the issue gets complicated.
While hypothetically, a nurse could get a certification from a physician that he/she has a “debilitating medical condition”[ii] that requires medical marijuana, Florida law still prohibits licensed health care providers from being impaired at work.
The law regulating licensed health care professionals prohibits practicing with an impairment or while impaired…
In my review of the law and conversations with DOH officials, it is my impression that a licensed health care worker that uses medical marijuana would run the risk of termination from employment, discipline of their license by DOH, or both.
The very language of Amendment 2 states: “Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.” [emphasis added]. This language now in the Florida Constitution appears to preclude use of medical marijuana in the work place.
Similarly, the Amendment also states: “Nothing in this section allows for a violation of any law other than for conduct in compliance with the provisions of this section.” Any other law would include Chapters 456, Florida Statutes and all other regulations governing health care licensees. Therefore, it is safe to assume that the medical marijuana amendment was not meant to override existing health care regulations.
However, our democracy provides for citizens the ability to ask the courts to interpret laws. To the extent someone may want to argue there is a conflict between the law governing medical marijuana and health care license regulations we may see a different interpretation. Stay tuned.
“The safe course of action would be to assume that your regulatory Board would not approve if you tested positive for marijuana, even if you had a valid certification to use medical marijuana.” (E)

Another question posed by a reader asked, “Can a nurse be fired for using recreational marijuana on his or her day off, when recreational use is legal in the nurse’s state?”…
The take-home message for nurses (and all healthcare professionals) is: If you want to protect your career, don’t use marijuana recreationally, even if it is legal in your state and even if you use on your own time and off premises. It is still illegal under federal law. If you decide to take a legal risk and partake in marijuana, don’t do so for at least a month before you will be working. Employers don’t all conduct random drug tests, but some do, and sometimes nurses are included in widespread drug testing, even if the individual nurse has not been accused of being impaired. It is so much easier to prevent this legal problem than to deal with it after being fired.
Furthermore, we don’t know how Boards of Nursing stand on the issue. Nurses have reported that they have lost their licenses and/or been referred to impaired nurse programs for testing positive for marijuana. We don’t know how every Board of Nursing would act on any given day, but at minimum, a firing would lead to a report to the Board of Nursing, and then the burden is on the nurse to prove he or she was not impaired at work. That, too, is more easily prevented than dealt with after the nurse is reported.” (F)

“Recreational marijuana laws are still relatively new, but more states are considering and passing these types of laws each year. However, these laws generally do not protect employees from being fired for legal, off-duty recreational use. Many state laws expressly state that they are not intended to interfere with an employer’s ability to enforce zero-tolerance drug policies. For example, California’s recreational marijuana law states that employers are allowed to continue to test employees and applicants for marijuana and maintain a drug-free workplace.” (G)

“The overwhelming majority of states believe patients should be able to medicate with marijuana. But legalizing marijuana use without protecting the rights of people who use it frustrates the spirit of the law and voters’ intent: it forces seriously ill people to choose between receiving the benefits of marijuana and their job. This conflict frustrates the growing market for marijuana. Only nine states seem to have found the balance between protecting a patient’s right to medicate with marijuana and an employer’s right to a productive workforce. The rest of the states should follow their example: following the law should not cost you your job.” (H)

“If you’re a federal contractor, you can’t allow any marijuana use, regardless of what state law says,” Urban notes.
For employers with a choice, the question becomes whether you really want to take this hard-line stance on marijuana, DiNome says.
“You may not attract the best work force in your state if the state allows the use of marijuana, medically or recreationally,” he says. “You would have to consider that some educated, qualified people come to your state because that substance is legal, and whether you want to eliminate all of those people as potential employees.”… (A)

(A) Legal Marijuana Requires Reassessing Hospital Drug Policies, by Greg Freeman, https://www.ahcmedia.com/articles/139987-legal-marijuana-requires-reassessing-hospital-drug-policies
(B) Can you get fired for smoking medical marijuana?, by Kabrina Krebel Chang, http://fortune.com/2014/05/07/can-you-get-fired-for-smoking-medical-marijuana/
(C) Workplace cannabis: What employers and employees need to know, by CYNTHIA SWEENEY, http://www.northbaybusinessjournal.com/industrynews/law/6579082-181/cannabis-marijuana-employment-law-rights
(D) Can I get fired for using legal recreational marijuana? An FAQ for California workers, by Peter Hecht, http://www.sacbee.com/news/state/california/california-weed/article152918329.html
(E) Medical Marijuana & Healthcare Professionals, by Jeff Howell, https://www.floridahealthcareattorney.com/2017/03/medical-marijuana-licensed-healthcare-professionals/
(F) Marijuana and Your Job: What You Need to Know, by Carolyn Buppert, https://www.medscape.com/viewarticle/846984_4
(G) Can I Be Fired from My Job for Using Legal Marijuana?, by Sachi Barreiro, https://www.lawyers.com/legal-info/labor-employment-law/can-i-be-fired-from-my-job-for-using-legal-marijuana.html
(H) You can be fired for using marijuana even when it’s legal, by Kabrina Krebel Chang, https://work.qz.com/1109564/you-can-be-fired-for-using-marijuana-even-when-its-legal/

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