Several weeks ago, I saw an article on Gawker.com that a woman had accidentally got her colleagues high on pot brownies.  Apparently, her son had left them in the freezer and she was unaware that the secret ingredient was not extra chocolate chips. 

I keep thinking about this article, mostly because it makes me laugh to think about what that office must have been like that day and what my office would be like if something like that happened here. 

But that article also brings up an issue for employers — does having a prescription for marijuana due to a disability trump an employer’s anti-drug policies?  The answer is dependent on each state’s medical marijuana laws.

As of this date, 16 states and Washington D.C. have medical marijuana laws.   New Jersey’s law, which became effective in July 2011, has a specific provision that states that the law does not require an employer "to accommodate the medical use of marijuana in any workplace."

Delaware’s law, on the other hand, affirmatively prohibits employers from discriminating against a registered qualifying patient "unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations." 

What is especially problematic for Delaware employers is that an employer may not terminate an employee who is a registered qualifying patient and who tests positive for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment. 

Although the law gives employers an out if the employee is under the influence at work, practically speaking, this puts the employer in a tough spot in a wrongful termination suit.  In order to prevail in such a suit, an employer would have to introduce expert medical testimony regarding how marijuana metabolizes in the system to prove the employee was high at work and not four hours before reporting to work.  Let’s face it — that type of evidence can be very boring and complicated for a jury to understand.

As more and more states enact medical marijuana laws, employers would be wise to make sure they understand their obligations under the law before terminating an employee with a positive drug test due to the use of medical marijuana.