If An Applicant Tests Positive For Marijuana, And Has A Prescription, Do You Have To Hire Him?
We have received calls that some applicants (upon being told that the company does a drug screen) have been threatening to sue for disability discrimination if they are rejected because they have a prescription to smoke marijuana. This scenario can also apply to an injured worker or if the employer reasonably believes that an employee might be under the influence of a controlled substance. Does the employer have to hire the applicant or retain the employee if they have a prescription?
My take is that both situations go back to the essential functions listed in the job description. If the disabled person or the employee who tests positive for marajuna is not able to perform the essential duties of the job in the judgment of a health care provider of the employer’s choosing and no accommodations can be made, there is no reason to hire the employee or keep the person employed. If the candidate tests positive for majuana during the pre-employment drug screen, my take would be to do a second and more detailed screen, which can differential between medical and non-medical marijuana. Not that this is the total answer, but helps get the burden off of the employer. I would play down the test results and make sure that my criteria for employment would find greater strengths in another candidate.
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No you do not. California was preempted by the Feds and stated that California employers do not have to put that individual or other staff members at risk.