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Charleston Business

With legal marijuana use spreading, what does that mean for workplace drug testing?

Nov 07, 2018 09:27AM ● By Kathleen Maris
By Dustin Waters

Now that Canada has become the largest legal marijuana marketplace in the world, the United States remains in a precarious position when it comes to the lawful use of marijuana — an issue that is sure to extend well into the workplace.

Currently, nine states and the District of Columbia allow for the recreational use of marijuana. Medical marijuana or cannabis oil has been made legal or decriminalized in 31 states, with legalization initiatives facing a vote this November in both Utah and Missouri. Meanwhile, federal laws staunchly prohibit marijuana use nationwide.

With so many contradictory laws surrounding marijuana and its various applications across the country, employers and workers in South Carolina may face legal uncertainty when it comes to drug testing in the workplace. The consensus among employment attorneys across the state indicates that much of the power remains with the employer — for now.

“Given the rise of the legalization of recreational and medical marijuana in other states, I anticipate we may see some interesting legal issues,” says Charleston attorney Melissa Fried Spence with the firm Nexsen Pruet.

For example, Spence explains, a South Carolina employer with a zero-tolerance drug policy may hire an employee to work remotely in a state where marijuana is legalized. Although South Carolina does allow for the use of cannabis oil as a treatment option, medical marijuana remains illegal in the state.

“If the employee is prescribed medicinal marijuana to treat an appropriate health condition, the employee may argue that the employer failed to provide him with a reasonable accommodation under the Americans with Disabilities Act (ADA),” says Spence. “However, the ADA does not currently consider individuals who use illegal drugs to be qualified individuals with a disability entitled to a reasonable accommodation under the law.”

Although Spence has never dealt with a case in which an employee challenged his or her termination following a failed drug test, she has counseled companies in situations where an employee refused to take a drug test in violation of company policy, was terminated, and claimed that the termination was wrongful or discriminatory. Still, in the case of a failed drug test, employers across the country maintain the high ground.

“Even in recreational-use states, my understanding is that an employer still has the right to terminate an employee if they test positive for marijuana,” says Columbia attorney J. Paul Porter with the firm Cromer, Babb, Porter & Hicks, who suspects that legal issues will “get more complicated on down the road on the medicinal end.”

With the patchwork of marijuana laws across the country, South Carolina attorneys admit that there is little chance of employees finding success in court following a failed drug test. But that doesn’t mean that some legal avenues are impossible.

“If you have an individual who is fired for testing positive for THC and that employee had used hemp oil that had a small amount of THC in it and was legal to consume and that person was using it to treat a condition that could be considered a disability, then I believe that employee would have a claim,” says Greenville attorney Andy Arnold of Horton Law Firm.

According to Arnold, this is the most likely chance at legal action that an employee in South Carolina might find, but there is still no guarantee of success. Arnold does point out a difference in drug testing among private and public employees — namely, the right to privacy.

“For example, drug testing of public employees in non-safety sensitive positions is generally unlawful,” Arnold explains. “If you have an employee who sits behind a desk and doesn’t have a safety-sensitive position, this person isn’t climbing ladders or buildings or those sorts of things, then the law presumes there is no reason to drug test that employee. If you notice impairment on the job, you could drug test them because now you’re not just curious about their drug use.”

Working in Columbia, Porter has tried a number of drug testing liability cases in which an employer is believed to have made mistakes in the way in which workplace drug testing was performed. He admits that these cases are incredibly complex and most often the employer is going to come out ahead due to the state’s policy of supporting employers’ rights to test their employees. According to Porter, anyone testing positive for drug use could not only face losing their job, but would also find themselves disqualified from unemployment benefits for up to a year.

Looking for a creative challenge to termination following a failed drug test, he references the 1989 Supreme Court case of Oregon Employment Division, Department of Human Resources of Oregon v. Smith, wherein a member of the Native American Church was denied unemployment benefits after he was fired for ingesting peyote during a religious ceremony. The defendant, Alfred Smith, was ultimately unsuccessful in court, but his case serves as a theoretical, although unlikely, route to challenging termination on the grounds of a failed drug test.

“That would kind of be a creative way to try to get there, through religion,” Porter explains. “If you had someone who was a practicing Rastafarian, who had a religious right to smoke marijuana, Title 7 of the Civil Rights Act protects civil liberties. I think Smith is going to say that’s not the case. I think if there is any way they are going to get there, it’s going to be through the ADAAA (Americans with Disabilities Act Amendments Act).”

With all that in mind, it remains important that employers draft a clear, concise workplace drug policy if they hope to avoid any possible legal challenge. According to Spence, it is important now more than ever for South Carolina employers who oppose drug use to have a well-written policy that covers alcohol, illegal or illicit drugs, inhalants, prescription drugs without a prescription, and even over-the-counter medications that may cause drowsiness or caution against driving.

“In addition to drugs, the policy should prohibit the use of alcohol during working hours or reporting to work under the influence of alcohol,” she says. “Most importantly, the policy needs to reiterate that the workplace has zero tolerance for those who choose to engage in activities that contravene the policy and that a violation of the policy will result in disciplinary action up to and including termination.”