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02.09.24
An employee in a safety-sensitive job who has been diagnosed with cancer is selected for a random drug test. The test result comes back positive for TCHA (tetrahydrocannabinolic acid -- are you sorry you asked?). The employee claims he's using a legal cannabis product, not smoking pot, to help with the pain from his medical condition. The employer allows the employee to get his urine sample retested by a different lab. The retested sample also comes back positive. The employee is fired for violating the employer's drug policy.
The employee sues for discrimination under his state disability rights law, in this case the Ohio Civil Rights Act. The employer gets the case dismissed, but the employee appeals. A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit finds that the employer will have to face a jury trial.
Scenarios like this are going to become increasingly common as medical marijuana and non-prescription use of legal cannabis products continue to become widespread. For employers who want to protect themselves, here are a few suggestions:
- Put a policy in place before something happens.
- If you have a no-cannabis policy in a state where the use of cannabis is legal...
- Realize that the "retest" option is pointless when an employee has used legal cannabis products.
- Instead of a retest, try...
- Let NyQuil be your guide. (Not a product endorsement!)
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