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  • Writer's pictureDavid Manes

Failed a Drug Test Due to Medical Marijuana. What Now? 

A growing number of states are beginning to adapt work-place medical marijuana laws, which has employers questioning their authority and what is enforceable. State law is superseded by federal law, which still classifies medical marijuana as an illegal substance.  Therefore, medical marijuana patients can still face criminal charges under federal law. You need to know your rights, so let’s dive into the details.

Failed a Drug Test Due to Medical Marijuana. What Now?

Disability Discrimination: Medical Marijuana

Can My Employer Retaliate Against Me if I Test Positive for Cannabis?

This is a question that could have a lot of different answers. There are more than thirty states in the United States that have medical marijuana laws.

With the growing acceptance of medical marijuana across the states, it is becoming harder for employers to adopt a zero-tolerance policy. If employers do decide to implement drug screening, they should make sure the policy is announced. The process should also be consistent, fitting to the particular circumstance (pertaining to specific industries) and complying with contract requirements.

When is Medical Marijuana Acceptable?

man and women bent over paperwork

State medical marijuana laws protect the use of medical marijuana for employees while they are off-duty as long as they have a valid prescription.

However, these laws do not protect employees if they show up to work under the influence of marijuana. Your employer can still terminate you for failing a drug test even if medical marijuana is legal in your state. How? Unless your state law specifically states that you cannot be terminated from your employment for the use of medical marijuana outside of work, your employer can take appropriate action.

Medical Marijuana & The Americans with Disabilities Act (ADA)

Under the Americans With Disabilities Act (ADA), “qualified individuals with a disability” are protected from discrimination and are entitled to reasonable accommodations. However, individuals who have serious health conditions and are using medical marijuana for treatment are not qualified as having disabilities under the ADA.

Even if the health condition may qualify them as having a disability, because that individual is using medical marijuana for treatment, it is classified as “engaging in the illegal use of drugs” therefore removes them from ADA protection. Under the ADA, employers should not require any pre-employment drug or alcohol testing until they are prepared to extend an offer of employment.

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How can State Law and the Pennsylvania Human Relations Act Protect Me?

Not so fast. What about state law? The Pennsylvania Human Relations Act may protect disabled individuals where the ADA does not. The PHRA, a state law, may protect employees with disabilities who are using medical marijuana. It is important to note that any type of protection for medical marijuana users does not take effect until the patient has been issued a medical cannabis registration card.

For example, the PHRA protects individuals who disclose that they use medical marijuana to treat a disability and are denied being hired or denied a position because of it. Knowing this, employers should work with employees who disclose that they are medical marijuana users and work with them to evaluate the best reasonable accommodations for the employee so he/she can perform the essential functions of their job.

While state law can protect employees who are using medical marijuana, it also specifies how employers can discipline. Employers can place restrictions on medical marijuana use while on the premise as well as during working hours, and may discipline employees who abuse their medical marijuana use (i.e. coming to work extremely under the influence). It is not a violation of state law to prevent an employee who is using medical marijuana from performing certain work tasks for safety reasons.

What Happens when a State Law Contradicts a Federal Law?

business men shaking hands

State laws only govern the citizens within a particular state, but federal laws apply to all U.S. citizens. So, what happens when state law and federal law clash?  Federal law will trump state law a majority of the time because of the doctrine of pre-emption found in article VI of the Constitution.

To sum it up, this doctrine states that if a federal and state law contradict, then when you’re in the state you can follow the state law, but the federal government can decide to stop you. This does not necessarily mean the federal government will take any sort of action.

Unless the contradiction is making a remarkable impact on national security or anything along those lines, it’s unlikely that the federal government will intervene. Regardless of all of this, it is still important for employers to be knowledgeable about the medical marijuana laws enforceable in their state.

Chat with an employment attorney: (412) 626-5626 or

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