Unemployment Hearing Case: Medical Marijuana

Case Analysis: Claimant with medical marijuana card was discharged for failing a drug test.

Background

The employer operates a food processing plant where the claimant worked on the production line. The claimant tested positive for marijuana and was discharged under the employer’s zero tolerance policy.

At the Hearing

The Employer’s Evidence:  The employer testified the claimant was asked to take a urine test under reasonable suspicion that he was under the influence of drugs. Due to the employer’s worksite containing a lot of heavy machinery and sharp tools, the employer has a zero tolerance policy regarding drugs and alcohol. He also noted that the claimant’s job is classified as safety sensitive. Unfortunately, the claimant tested positive for marijuana. At the hearing, the employer presented the complete drug and alcohol policy. The policy prohibits the use of any controlled substance that is not medically prescribed. It also specifically stated that marijuana was one of the prohibited substances. Later, the employer produced the claimant’s test results and the chain of custody documentation. He also presented the Medical Review Officer (MRO) to testify to the test results. The Claimant’s:  The claimant testified that he was aware of the employer’s policy. He stated that he had eaten some marijuana two days prior to the test. However, the claimant presented a physician’s certification and medical marijuana card. He also indicated that he was on light duty, and therefore not participating in any safety sensitive activity.

The Hearing Decision

The Hearing Officer found:

• State law provides for a disqualification from unemployment insurance benefits when the reason for separation is that the individual tests positive for a controlled substance that is not medically prescribed.
• Because the state legislature has allowed for the use and sale of marijuana for medicinal use, the Hearing Officer found that the claimant has a right to use marijuana under state law. The claimant was granted benefits.

The employer appealed. The employer argued:

• The claimant worked in a safety-sensitive position, and therefore the employer had a vested interest in ensuring that employees are not under the influence of impairing substances.
• The employer’s policy prohibited the use of not medically prescribed controlled substances. The claimant’s physician certification is not the same as a prescription, and it is not governed by the same rules and regulations.

The Board of Review Decision

The Board of Review (Board) reversed the decision stating that:

• The state statutes that allow for the use of medical marijuana create exceptions to criminal prosecution. However, it does not necessarily require an employer to accommodate the use of marijuana in the workplace.
• The physician certification and medical marijuana card expressly indicate that it does not constitute a prescription for marijuana. Therefore, there is no legal impediment to allow for the presence of marijuana in an employee’s system during working hours.
• The claimant admitted that he was aware that the employer’s policies did not allow for the use of marijuana and chose to disregard them. This constitutes a disregard of the employer’s interests.

Takeaways

1. In some states where marijuana use has been legalized for medicinal use, the claimant’s physician certification might be sufficient evidence.
2. A state also may choose to view a medical marijuana card in the same manner it does a prescription.
   • While states do not require employers to accommodate the use of marijuana, they will not always disqualify a claimant for the use.  The rules and requirements for obtaining a medical marijuana card also vary significantly from state to state.
3. In states that have legalized marijuana for recreational use, the discussion on whether or not a claimant is disqualified for misconduct is similar to arriving at the workplace under the influence of alcohol. Employers must prove the claimant was impaired at work.
4. Best practice in all drug cases is to have a MRO testify at the hearing. The MRO is uniquely qualified to provide insight into the science of the test.

Want to  Learn More?

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Please remember: Unemployment laws vary from state to state. The results in this case might be different from a case in your state. Also, always consult with your own legal counsel and advisors concerning your specific situation.