Here are five things that local employers need to know about the amended CUMMA.
1. Employers cannot take adverse employment actions against employees solely based on their status as medical marijuana patients.
For example, let’s assume that your business drug tests its employees randomly. Now, suppose one of your employees who is about to be tested warns you in advance that s/he will probably fail the drug test because s/he is a medical marijuana patient. If you jump the gun and fire the employee before administering the drug test, you have violated the CUMMA.
2. Yes, you can drug test. But, there’s a lot of paperwork involved.
If an employer has a drug testing policy and an employee or job applicant tests positive for cannabis, the employer must offer the employee or job applicant an opportunity to present a legitimate medical explanation for the positive test result and must provide written notice of the right to explain to the employee or job applicant.
3. Indeed, you may have to re-test.
Within three working days after receiving notice, the employee or job applicant may submit information to the employer to explain the positive test result, or may request a confirmatory retest of the original sample at the employee’s or job applicant’s own expense.
4. There may be an implied duty to accommodate medical marijuana use outside of work.
As part of an employee’s or job applicant’s explanation for the positive test result, the employee or job applicant may present an authorization for medical cannabis issued by a health care practitioner, proof of registration with the commission, or both.
The amended CUMMA further clarifies that nothing in the law requires employers to allow the consumption of medical marijuana during work hours or do anything that could result in the loss of federal funding.
By implication, this could mean that employers must accommodate medical marijuana use during off-work hours.
5. Tread carefully.
It doesn’t actually say this in the amended CUMMA. But, you’d be wise to involve outside counsel when a medical marijuana user tests positive.