Employers who deny or terminate employment for medical marijuana users who test positive for THC may soon run afoul of Hawaii Civil Rights Commission regulations.
Two points to emphasize first: (i) this does not impact Department of Transportation required drug testing; and (ii) this is a proposed rule change – it has not yet gone into effect.
The HCRC proposes to add to its regulations on disability discrimination language which would make it potentially unlawful to deny a reasonable accommodation to a disabled employee with a 329 card who tests positive for THC, unless they were using or under the influence on work premises or during working time.
The full text of the new rule can be found on the HCRC website here.
What should Hawaii employers who conduct non-DOT drug testing for THC do?
First, if you have opinions about this rule change, you can let the HCRC know by e-mailing the HCRC’s chief counsel at [email protected] (include “HCRC Proposed Rule Amendments” in the subject line of the email). The public comment period has passed, but they are continuing to accept comments via email.
Second, you could just throw up your hands. Many Hawaii employers have already given up on testing for THC. A positive test does not indicate current impairment. And the use of marijuana, whether for medical reasons or still-unlawful-in-Hawaii-for-now recreational reasons, has become sufficiently common that, in combination with a tight labor market, it is simply no longer making sense to many employers to rule out otherwise qualified candidates for this.
Third, for those employers who do and will continue to test for THC, it will be necessary to consider a reasonable accommodation when an applicant or employee tests positive for THC and produces a 329 card. Obtaining a 329 card is supposed to require a debilitating medical condition. So if properly issued, it is very likely that the card itself is indicative of a “disability.” That said, employers may be entitled to request medical information to verify a disability if that is not obvious. And employers should request medical information verifying that the employee’s use of marijuana for medical reasons does not and will not result in impairment at work or during work hours. With that information, an employer will likely be obligated to bend its drug testing policies by not taking action on a positive test result for THC when the employee or applicant has a 329 card. Because employers need not tolerate use or impairment at or during work, supervisors and managers should be trained on observing and documenting signs of impairment. Employees who meet the criteria can be sent for reasonable suspicion testing under applicable policies, and could be subject to discipline if the employer reasonably concludes that the employee was impaired at or during work.
Finally, the proposed rule says that employers may deny an accommodation if that would create an “undue hardship on the operation of its business.” But if the employer has received medical documentation verifying the employee can make use of medical cannabis without being high at or during work, how would you establish hardship? Demonstrating “undue hardship” is a difficult and uncertain burden under any circumstances. As a defense in this situation, this option is likely no more than a mirage. Don’t count on it. If you believe your circumstances warrant denying an accommodation based on undue hardship, talk to an employment lawyer before taking action.
Notice: We are providing this as a commentary on current legal issues, and it should not be considered legal advice, which depends on the facts of each specific situation. Receipt of this content does not establish an attorney-client relationship.
Notice: We are providing this as general information only, and it should not be considered legal advice, which depends on the facts of each specific situation. Receipt of this content does not establish an attorney-client relationship.