Background Checks and Employees Using Medical Marijuana

Not long ago, several of us were discussing the issue of medical marijuana and its impact on employers.   Suppose employers conducted drug tests or ran assorted background checks and discovered their employment candidate was legally using medical marijuana.   Is it okay?  Is it not okay?  In short, what’s up with this?

So now we are seeing, if not definitive information, then at least some early considerations for medical marijuana in the workplace.   Colorado legalized marijuana in 2000.  However, Pueblo County officials ruled that legal or medical marijuana would be considered along the same lines as alcohol in the workplace.  The officials warned employees not to smoke grass at the workplace or come to work under its influence.   In Colorado, there  is an amendment to the medical marijuana law, excluding the workplace as an acceptable place to use medical marijuana.  However, in some contrast, the law also states that an employee cannot be fired for being under its influence.

In California, the employer does have the right to fire you for using medical marijuana.  This is a ruling by the California State Supreme Court, noting that marijuana, medical or not, is still illegal, according to federal law.  Oregon and Washington State have also held up the employer’s right to fire their stoned employees for medical marijuana usage.    Interesting and confusing stuff.

Wal-Mart may have added to the general dilemma by firing an employee for using medical marijuana.    The big box giant noted it was concerned for the safety of its customers.  Other employers have also chosen to fire employees for fear of negligence arising from stoned employees  somehow harming  customers.  It could happen, I suppose.  Especially if the customer had a big bag of Cheetos sticking out of his pocket.  The Michigan Department of Civil Rights is investigating the case to see if Wal-Mart has violated the state’s disabilities protection laws.

Of the different background checks and the monitoring of a job candidate’s social network pages is the toughest call.   Credit reports are yet another background check burdened with its fair share of controversy.   With respect to credit reports, it is  not always crystal clear, as some reputable and competent job candidates suffer from the economic downturn or have been overwhelmed by either debt from college loans or medical bills.

With respect to medical marijuana int he workplace,  there are any number of issues here.    Does medical marijuana causes its user to risk greater injury in the work place?   Are they that much more of a danger to others?  I really don’t know.  I am sure in the future we will see study after study, most of which will be skewed to favor that initiating group’s point of view.   We can expect a lot of conflicting information.

One suggestion is to run the background check to see if your employment candidate has previous criminal records where substance abuse is at issue.  Run the MVRs or motor vehicle driving records to check for DUIs.   These are good background checks for ascertaining prior substance abuse.   Then of course you have more information and can make a better decision.   Also, if your medically marijuana using employee is in a back office where he can do little harm, that too is a consideration.

This is a tough call all the way around.  I am sure we will see additional legislation and additional rulings from the court on this.