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Medical Marijuana and Background Checks

New York case illustrates the dilemma for staffing firms that follow client screening requirements.

As many as 36 states have legalized Marijuana for medical or recreational use. On the other hand, it is still technically illegal under federal law. Because of federal illegality, it was at one time perfectly legal to refuse to hire an individual based on a positive marijuana result. But today, a large number of state and local laws protect medical marijuana users in the employment context by treating anyone with a prescription as having a disability, and a few even protect recreational users. For staffing firms that receive orders from clients to screen for cannabis, this can create a real dilemma, as illustrated by a recent New York lawsuit (copy attached below) filed against Cincinnati-based ProLink Staffing.

ProLink is a top 100 U.S. staffing firm that focuses on travel nursing. On July 28, 2022, ProLink was sued in New York State court by registered nurse Tracy Smith. The complaint, attached below, alleges that after traveling from New York to an assignment at a hospital in Massachusetts and beginning work, Smith was summarily terminated for a positive cannabis test result. This was likely based on the policy of the client hospital, not ProLink. Nevertheless, Smith, who had a cannabis prescription, went back home to New York and sued ProLink, not the client hospital.

in 2021, New York passed a law, the "Marihuana Regulation and Taxation Act," protecting all marijuana users, both medical and recreational, from employment discrimination, so long as the use was not during working hours and occurred off the employer's premises. Since 2017, Massachusetts has protected medical marijuana users under its disability discrimination law. Smith, who was hired and tested in New York, sued under that state's more favorable law.

Obviously, this is a difficult state of affairs for staffing agency employers. What, if anything, can be done to reduce the risk? The best guidance is to not test for marijuana use at all. If a client requires cannabis testing, consider approaching the client preemptively and suggesting that it be eliminated from the testing protocol. In a state like New York, such testing should rarely be required, unless justified by nature of the work, e.g., the job is presents safety risks to employees or others, is connected to a federal government requirement, such as federally regulated interstate transportation.

In the states that regulate the issue under disability laws, if a client insists on testing, the question to ask is whether disqualification is automatic. If so, the risk of a disability claim is high, and this may not be an assignment you should fill. Otherwise, disability law requires the client and the staffing firm to conduct an individualized "reasonable accommodation" assessment based upon the nature of the job. This reduces but does not eliminate the risk of a disability discrimination claim under state law, because the prospective employee always can argue that it is not reasonable to assume they will be impaired on the job.

The medical marijuana dilemma is particularly acute in the travel nurse business. First, what may be legally protected in the nurse's home state may not be protected in the travel state, or vice versa. Second, hospitals have a very good business reason to disqualify from employment all clinical personnel who use marijuana - the hospital's medical malpractice exposure. It is not hard to imagine the attorney for a medical malpractice plaintiff focusing on a nurse's positive cannabis test result to bolster the case against the hospital.

Litigation of this issue is going to be around for a long time, even though the long-term trend is to treat marijuana use the same way we treat recreational alcohol use.