Just the facts Ma’am:
Candidate lives in California and obtains a prescription for marijuana. We are going to assume that she used the prescription as prescribed. Wink!
She then moves to Texas and applies for a job. But wait, the employer performs drug testing.
What is the employer’s obligation? Could it refuse to hire the candidate, despite the candidate’s “legal” use of marijuana?
My advice was for the candidate and you might be shocked at what it was, but I digress.
What is the employer’s obligation if the candidate’s test is positive? The candidate has legally used marijuana.
The short answer: The employer can elect not to hire the candidate.
But the candidate was using marijuana legally! Not according to Texas and federal criminal statutes. The stuff is still illegal in most states and federally.
Many states are flexing their statehood muscle and passing laws that fly in the face of federal laws. Decriminalizing the use of certain drugs is just one example of states exercising their rights.
Although California has elected to legalize the use of medicinal marijuana, Texas still considers the possession and use of it illegal and so does the United States of America.
If you are thinking that this might be an ADA issue, think again. Illegal drug use is specifically excluded from the definition of a “qualified individual with a disability.” However, the use of the illegal drugs must be the reason for the decision not to hire an otherwise qualified individual with a disability.
So a Texas employer confronted with an issue like this should first look to its policy on drug testing. Follow the policy and apply it consistently.
Post by: Michael Melder