If an employee uses medical marijuana, can they be terminated if they test positive for marijuana?

Medical marijuana laws vary by state and it’s important that employers address the specific laws that pertain to their company and employees when creating a drug testing policy. Each state has its own system of medical marijuana laws, which may or may not include bills that provide explicit employment protections. For example, in California, legislation allows employers the right to terminate an employee who tests positive for marijuana, even if they hold a medical marijuana card.

In addition to state laws, employers must also address federal standards pertaining to  workers’ comp, the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), unemployment benefits, drug-free workplace laws, and state handicap/discrimination laws. Even in states where legalized, the laws do not protect an employee that is impaired while at work, under the influence, or using on the job, especially when working in a safety-sensitive position. While a workplace drug test will detect THC, in most instances, the same test will not determine “impairment.” This is why documenting suspicious behavior and implementing manager training for reasonable suspicion and probable cause will help determine if an employee is impaired while on the job.