Yes I know, we don’t have medical marijuana here in Florida (yet). When we do, lots of issues are going to crop up, including a sharp decline in criminal defense revenues (like I’ve said before, I can handle it, as I’m sure the government will simply find other things to charge citizens with…). If marijuana becomes legal, must an employer must accommodate a patient’s use of medical marijuana on the job? And, a related question is, can an employee be fired for a positive drug test if that test simply proves the worker is positive for legally prescribed marijuana?
There isn’t much case law on this issue nationwide. Oregon has medical marijuana, and Oregon has decriminalized the possession of small amounts of marijuana (it’s simply a ticket to possess without a prescription, pay a fine, no crime). Recently an employee in Oregon requested that his employer accommodate his marijuana use, and he was fired. The employee sued the company under the ADA (a federal disabilities act), claiming discrimination due to his medical treatment. The courts did not agree, and approved of the employer’s termination. Part of this opinion, however, seemed to hinge upon the fact that the ADA is a federal law, and under federal law, possession of marijuana is illegal.
So, even though an employer need not make smoking accommodations for a patient/employee (in Oregon), can an employer fire someone for testing positive? As of today, I can find no case law indicating yes or no. We’ll have to wait and see. One thing is for sure, it’s nice to have a few other states sorting out these issues before Florida jumps in. Less work for lawyers is a good thing (there, I said it).