Medical marijuana can be legally recommended by physicians for various illnesses. However, this legal use is only legal at the state level — not the federal level. According to ProCon.org, as of April 20, 2017, 29 states and Washington, D.C. have now legalized medical marijuana at the state level. Medical marijuana is not protected under the Americans with Disabilities Act (ADA). With medical marijuana becoming more popular at the state level, how does marijuana drug testing impact costs for finance leaders?
Medical Marijuana Under the ADA
Under the ADA, a "qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs." Illegal drugs, under the ADA, are defined as the use, possession or distribution of drugs which are deemed unlawful under the Controlled Substances Act (CSA). Such terms do not include those drugs taken under the supervision of a licensed health care professional.
Medical Marijuana Is Not Protected by the ADA as an Accommodation
Courts are genearlly in agreement that medical marijuana use does not enjoy the protections of the ADA — thus, its use is not protected under the ADA. As stated by Current Compliance, a national drug-testing business, because marijuana is a Schedule I illegal substance, doctors may not prescribe it. They may only recommend its use. Thus, it is not a prescription drug.
Further, under the CSA, medical marijuana recommendations are not authorized. Because of this, medical marijuana is considered an illegal drug under the ADA and employers do not automatically have to permit employees to use it as a reasonable accommodation. But be sure to check local, state anti-discrimination laws, too. If employers encounter difficulties with an employee because of marijuana use, they should consult legal counsel, but may be able to take action against the employee, as the action is based on marijuana use, not the underlying medical issue or disability.
Drug Test Effectiveness in the U.S.
According to The Atlantic, approximately 40 percent of Americans are subject to drug testing during the hiring process. However, drug tests are not capable of determining whether someone is impaired on the job, as they can pick up residual drugs lingering in someone's system from previous use. According to Slate, drug tests miss other serious on-the-job impairments, such as alcohol and extreme fatigue. However, Slate notes that 45-50 million workplace drug tests are taken annually, contributing to a massive biomedical HR industry.
There may be support for drug testing for jobs in which safety is a primary concern, such as transportation. However, even with safety concerns, employers should revisit their drug policies and not just test because it's the way they've always done it. Although testing must be applied in a nondiscriminatory way, finance leaders must measure the effectiveness of their drug programs against the cost.
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