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Medical marijuana employment law, multiple state

Medical marijuana employment law...

Medical marijuana employment law, multiple state jurisdictions, civil rights / patient rights

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

Company headquartered in GA. I live in NM. I am covered under NM Medical Marijuana protection. Applying to work at a company that is based in GA. They offer me the job. Then they ask me to take a drug test, I test positive for medical marijuana in a state in which it is legal for me consume. The GA-based company withdrawals the job offer. Is that discrimination? There was no mention of drug testing in the hiring process up until then.

Lawyer's Assistant: Has anything been filed or reported?

No

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Answered in 1 minute by:
1/6/2018
attyadvisor
attyadvisor, Attorney
Category: Employment Law
Satisfied Customers: 7,915
Experience: 30 years in Employment Law
Verified

Welcome to JA and thank you for your question. I will be the Attorney that will be assisting you.

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Customer reply replied 1 month ago
OK, hello.

Was it part of their employment policy procedures for a drug test? Do yo have any documents from Human Resources?

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Customer reply replied 1 month ago
I don't want to switch to a live call.

Please ignore the call request. It is not from me.

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Customer reply replied 1 month ago
ok
Customer reply replied 1 month ago
No, as I say there has been no mention of a drug test. There is nothing on their Website or in any correspondence that indicates a drug test will be part of the hiring process.

Even in states were marijuana is legal an employer can drug test and you can be denied a job. But it must be the company policy. They must test all employees and not randomly test.

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The HR department would be able to tell you this.

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Customer reply replied 1 month ago
I am giving you a hypothetical here.

For example they drug test in Colorado and California where it is legal https://www.npr.org/2017/07/08/536125097/colorado-employers-rethinking-drug-testing

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Customer reply replied 1 month ago
but if I ask the HR person I am disclosing something to them / raising a red flag.

If the company policy is to drug test you could be denied a job even though it is legal in that State.

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Customer reply replied 1 month ago
How do I find out if it's the company policy without having to ask?

Ask for a copy of the policy handbook. https://www.law360.com/articles/874547

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Customer reply replied 1 month ago
Why isn't my condition treated like a disability
Customer reply replied 1 month ago
It sounds like discrimination to me. I am offered the job and then discriminated against because of the medicine I need for my disability.
Customer reply replied 1 month ago
I think there is also a federal issue here, is there not? The disparity between NM and GA, with the latter having no medical marijuana program.

I am sorry it is not at this point used as an employment disability and as you know the Federal laws and State laws are in conflict.

"Marijuana is still an illegal substance on a federal level. This means that employers, even those in a state where pot is legal locally, have the right to a test for illegal substances. If an employer aspires to have a drug-free workplace, detecting marijuana in a drug test may prevent a candidate from being hired. This is true even in Colorado – although it has brought about many challenging lawsuits.

So what does this mean? It means the way to prevent a failed drug test while job searching is to avoid using all recreational drugs while job searching. Yes, even if cannabis is legal in your state. Just as you likely know not to take shots of tequila before you head to the urine test, stay away from anything with THC, as well. But for how long? While most of us realize alcohol metabolizes pretty rapidly (think hours and days), marijuana has a much longer, less agreed upon tail. Given the varieties of drug tests, individual metabolisms and length of use, drugs can show up for days, weeks or even months after use. What might be fun in your personal life could limit your options professionally." https://money.usnews.com/money/blogs/outside-voices-careers/articles/2017-01-17/how-to-handle-pre-employment-drug-testing-where-marijuana-is-legal

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Unfortunately marijuana is is still illegal at the federal level.

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The federal issue is that it is illegal at the federal level so that would not raise discrimination issues.

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Customer reply replied 1 month ago
I don't know if these are your words or not: "It means the way to prevent a failed drug test while job searching is to avoid using all recreational drugs while job searching."This is not recreational drugs. This is cannabis for medicine.If they are your words above e, then you are advising me to stop consuming what is defined as medicine for my debilitating condition?

Either way you can not be hired for testing positively in certain states. https://www.lawyers.com/legal-info/labor-employment-law/can-i-be-fired-from-my-job-for-using-legal-marijuana.html

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"Medical Marijuana

Some states, such as Arizona and Delaware, have passed laws that restrict employers from firing medical marijuana users unless they are shown to be impaired on the job. If you have a prescription for medical marijuana in these states, your employer cannot fire you for off duty use that does not affect your work.

Have a wrongful termination question?

However, many states with medical marijuana laws do not specifically address the employment context. In these states, employees typically are not protected from being terminated for legal medical marijuana use. Courts in California, Colorado, Oregon, and Washington have upheld an employer’s right to terminate a current employee who tests positive for marijuana, even when the employee had a valid prescription and only used marijuana while off duty. In arriving at this decision, many state courts relied on the fact that marijuana is still illegal under federal law.

In Colorado, for example, the state Supreme Court upheld the firing of a quadriplegic man with an outstanding work record due to off-the-job medical marijuana use. Because Colorado’s medical marijuana law does not provide employment protections, the employee argued that he was protected under the state’s off-duty conduct law. Colorado’s off-duty conduct law prohibits employers from disciplining or firing workers for engaging in legal activities outside of work. The employee argued that his use of medical marijuana was legal under state law and should therefore be protected. The court disagreed, holding that medical marijuana use was not a protected lawful activity because it is still illegal under federal law.

Recreational Marijuana

Recreational marijuana laws are still relatively new, but more states are considering and passing these types of laws each year. However, these laws generally do not protect employees from being fired for legal, off-duty recreational use. Many state laws expressly state that they are not intended to interfere with an employer’s ability to enforce zero tolerance drug policies. For example, California’s recreational marijuana law states that employers are allowed to continue to test employees and applicants for marijuana and maintain a drug-free workplace.

What about the ADA?

The Americans with Disabilities Act is a federal law that requires employers to provide reasonable accommodations to qualified employees with a disability. However, the ADA does not require employers to accommodate illegal drug use. While medical marijuana is legal in many states, it is still illegal under federal law. As a result, employees who use medical marijuana for a disability are likely not entitled to accommodation under the ADA. https://www.lawyers.com/legal-info/labor-employment-law/can-i-be-fired-from-my-job-for-using-legal-marijuana.html

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Customer reply replied 1 month ago
Ok, this info more directly answers my question. Thank you!!

So as you can see even with a valid prescription you can not be hired. You want to see what the employment policy is on marijuana use with a prescription.

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They need to figure out a uniform policy because as it stands it is random.

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You are most welcome.

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If they are testing they better be testing all employees or the policy would be selective and unfair.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it. A positive rating will not impact your ability to obtain a refund.

You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out.

Can you see the rating scale on your end, 5 stars?

Thank you for your consideration.

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attyadvisor
attyadvisor, Attorney
Category: Employment Law
Satisfied Customers: 7,915
Experience: 30 years in Employment Law
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Customer reply replied 1 month ago
How long does the window to ask additional questions last within the $5.00 offer that I purchased?

Let me provide the phone number for customer service. The Attorneys have no access to customer accounts and are not involved with payment.

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attyadvisor
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