Marijuana may be legal in some states. Medical Marijuana is legal in other states with certain restrictions. There are current legal uses for Marijuana all over the US. Employers with drug testing programs may wonder how the laws regarding marijuana affect the employer’s ability to enforce its drug prohibition policies.
Wisconsin has a statute that prohibits an employer from terminating an employee who engages in legal use of any product. The Americans With Disability Act and its Wisconsin counterpart restrict the employers ability to take job action against an employee using drugs for medical reasons. So the employer must ask whether or not the employee can use marijuana in Wisconsin if there is a diagnosed reason to use marijuana.
Presumed Facts: An employer has a properly implemented drug policy which includes among other things the right to terminate an employee for violating the policy. The employee as part of the defined drug testing policy is tested positive for marijuana contrary to the employer policy. The employee produces a valid prescription for the marijuana use.
Current Law in Wisconsin: If an employee tests positive for marijuana contrary to the employer drug use policy, that employee may be terminated without the employer’s violation of the Americans with Disability Policy or its Wisconsin counterpart. This is despite the employee is using marijuana under a proper description. An employer is not required to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity, even if the misconduct is the result of a disability.
While Wisconsin courts have not tested the issue, a number of states have and continuously ruled in favor of the employer. Francis Bailey writes in the Wisconsin Bar Bulletin “As with all changes in the law, practical application will take time to develop – dragging statutory and case law with it. Until then, employees of Wisconsin companies would be well-advised to proceed with caution when lighting up.”
Before taking any job action employers are wise to consult with their attorneys to insure that the law has not changed.
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