Andre Blais /

February 12, 2013; Source: Kennebec Journal

If you drug test a prospective employee and the test comes back positive for marijuana, and if you do so in a state where marijuana is now legal or legal when medically prescribed, are you, the employer, within your rights to deny employment on that basis? In Maine, the American Civil Liberties Union (ACLU) is taking such a case, involving Brittany Thomas, a 24-year-old woman who says, “Using medical marijuana would never have gotten in the way of me doing my job, because I never would have taken it while on duty. I choose to use medical marijuana to control my pain because it doesn’t have any of the side effects of stronger pain medication, like addiction. The incredible thing is, if I was using a stronger drug, I could have kept my job.”

“No patient should be forced to choose between the pain relief she needs to live a normal life and the employment she needs to support her family,” comments Zachary Heiden, legal director for the ACLU of Maine. “And no employer should be forcing itself into the middle of a decision best made by a patient and her doctor.” In Maine, those with qualified medical conditions can grow marijuana themselves, buy it from a nonprofit dispensary, or buy it from a certified caregiver who can supply up to five patients.

While there is limited legal precedent for this type of case in Maine, the issue has come up in other states. In Michigan last year, the U.S. Court of Appeals for the Sixth Circuit ruled that private employers (in that case, Walmart) may terminate employment on the basis of a failed drug test even if the employee is in compliance with the state’s medical marijuana laws. There are also such cases pending in New Mexico and Colorado, but in Arizona, a recently passed law states that an employer may not base any employment decisions on a person’s legal use of marijuana under the Arizona Medical Marijuana Act unless (and this is a big unless) one is fired for being under the influence while on the job. This story is a time to pause and reflect on the ever-evolving character of the law. –Ruth McCambridge