Louisiana legalized the use of medical marijuana when it adopted what is commonly referred to as the “Therapeutic Use of Marijuana Act.” There has been precious little guidance to employers on how to handle this topic since the statute’s enactment. So what is an employer to do when an employee tests positive for marijuana? Before any disciplinary action is taken, further inquiry is needed.
First of all, as marijuana remains illegal under federal law, an employee would have no right of action under the Americans with Disabilities Act if adverse employment action was taken on the basis of the use of marijuana. The analysis is not so simple under state law. Because the medical marijuana statute authorizes doctors to prescribe marijuana to treat certain conditions, a positive drug test may indicate an underlying disability or health condition. The employee could have a cause of action under Louisiana disability discrimination laws if adverse employment action, including termination, is taken.
Until these issues work their way through the courts, or the legislature addresses the employment disability discrimination issue, the best practice is to treat a positive marijuana drug test like a positive result for other prescription drugs. Start an interactive process with the employee inquiring if there is a prescription and whether or not accommodation is needed.
Because this is an unsettled area of law, and very fact sensitive, employers are urged to consult with counsel prior to taking adverse job actions.