Pre-Employment drug Test

ok so this is just as confusing as the tax code, lol. but here is the info

SUMMARY: There has been a great deal of publicity, significant legislative activity, and recent case law on the authorized use of medical marijuana during the past few years that must be taken into consideration in workplace drug testing programs. However, under state and federal Americans with Disabilities Act (ADA) laws, employer still may have to consider accommodating an employee whose medical condition has led to a recommendation of medical marijuana use. Based on the state or states in which an employer is located, different statutes affect the policies the employer must follow. Even if a particular state in which an employer's business is located has state marijuana laws, the employer is not necessarily bound to accept medical usage as a legitimate reason for a positive test. In addition to medical marijuana state law, state case law decisions must be considered in an employer's policy decision. A critical point is that the laws of 13 states are inconsistent with federal law.


There has been a great deal of publicity, significant legislative activity, and recent case law on the authorized use of medical marijuana during the past few years that must be taken into consideration in workplace drug testing programs. Legislation and case law are constantly changing and affecting this topic, making it difficult for employers to determine what they must do to minimize their legal risk but still meet the objectives of their drug-free workplace programs.


Currently, and as a result of the critically important U.S. Supreme Court decision Alberto R. Gonzales, Attorney General, et al. v. Angel McClary Raich, et al., No. 03-1454 (decided June 6, 2005, 125 S.Ct. 2195), in most states with medical marijuana laws, an employer may safely refuse to accept medical marijuana as a reasonable medical explanation for a positive drug test result. (This case is generally referred to as Ashcroft v. Raich or Gonzales v. Raich.)


The case was argued on Nov. 29, 2004. It involved two California patients' rights to cultivate and possess prescribed marijuana. These patients had previously been protected from federal prosecution by a 9th U.S. Circuit Court of Appeals decision. More fundamentally, the case debates states' rights versus federalism. On June 6, 2005, the Supreme Court ruled the federal government may enforce the Controlled Substances Act's prohibition on the use of marijuana for medical reasons against persons who use marijuana under state medical marijuana laws.


This decision may affect the way medical marijuana use is interpreted in the workplace in future court decisions. By affirming that the use of medical marijuana is illegal under federal law, employers can refuse to consider accommodations that would acknowledge or support illegal activity.


Accordingly, and of most significance to workplace drug testing: "Medical Review Officers, too, can verify drug test results as 'positive' for marijuana even if the employee is using the drug under state law without fear that by so doing, they are ignoring medical authority making such use lawful." Source: Dale L. Deitchler and Nancy N. Delogu, Littler Mendekon, P.C.-DATIA Resources


However, under state and federal Americans with Disabilities Act (ADA) laws, employer still may have to consider accommodating an employee whose medical condition has led to a recommendation of medical marijuana use. What an employer may need to do to accommodate the individual will involve a determination of what is a "reasonable" accommodation under ADA. The employer should clearly state its position on medical marijuana in its Drug Free Workplace Policy. In addition, the employer must approach a challenge to the test result based on state or federal disabilities law with care and the benefit of knowledgeable, local legal counsel.


The Impact of These Laws on Workplace Drug Testing

Based on the state or states in which an employer is located, different statutes affect the policies the employer must follow. Even if a particular state in which an employer's business is located has state marijuana laws, the employer is not necessarily bound to accept medical usage as a legitimate reason for a positive test.

The exceptions are Montana, whose laws state that "penalizing in any way" is prohibited, and California, because litigation exposure is high. The government 's position is that both medical marijuana and hemp product ingestion are not reasonable medical explanations for a positive laboratory drug test result. A contrary policy decision may very well undermine the objectives of an employer's program.

Thirteen states have medical marijuana laws: Alaska, Arizona, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Rhode Island, Vermont, and Washington. The purpose of these laws was to insulate physicians from criminal liability for prescribing or recommending the use of smoked marijuana and their patients from possessing and using smoked marijuana for specific medical conditions.

Additionally, each of the 13 states with such laws have unique statutory requirements that must be followed in order to claim the protection of the statute. All of the statutes have some type of limitation on the amount of marijuana the patient or caregiver may purchase/grow/possess/obtain. For example, Arizona requires employers to accommodate the medical use of marijuana in the workplace, and Maine specifically prohibits marijuana in any place of employment. Furthermore, the possible conflict of the Arizona medical marijuana state law with federal law makes it questionable as to whether making a workplace accommodation for use of medical marijuana is a prudent election. A critical point is that the laws of these 13 states are inconsistent with federal law.

 

yeah, i guess i coulda just said that, lol