President and Medical Director
MediTrax / OHS, Inc.
o:925-820-7758
c:925-368-3367
drjoe@meditrax.com
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I based my example on a the case of an actual
person, after changing her job title and diagnosis. With all due
respect, her oncologist did NOT give her "bad advice." The state
legislature, which regulates the practice of medicine in her
state, has determined that a physician may legally recommend the
use of marijuana for specific conditions. Neither she, nor her
physician, did anything illegal. He was acting within the
legally defined scope of practice in the state. The court
acknowledged that her state has made the
use of medical marijuana permissible, but it concluded that
marijuana’s illegality under federal law results in the ADA
offering no protection and her termination was therefore
justified despite no evidence of impairment. I fault the MRO in
this case for simply refusing to accept that she had a
legitimate medical explanation for the trace amount of THC in
her system.
I realize that litigation on this subject continues, because while employers are not currently required to accommodate the use of medical marijuana, they must still follow state law regarding the drug testing of their employees. When a drug test is contested, courts will balance the employer’s reason for testing against the employee’s legitimate expectation of privacy.
Respectfully,
Joe Fanucchi
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Her board certified oncologist would prescribe Marinol, which is a FDA approved treatment for chemotherapy induced nausea.
Private employers can set their own drug testing policy. Marijuana is still an Class 1 controlled substance in Federal law.
A verified and current prescription for a controlled drug will usually make the drug test negative. That is what a Medical Review Officer’s (MRO) job is to determine.
Her doctor gave her bad advice.