Malissa on Weed: Legalized Marijuana and Employer Drug Testing

By M. Malissa Burnette
Attorney at Law

It’s Weed Day 2018!

Marijuana is no longer perceived as the threat to all humanity portrayed in the 1936 propaganda film “Reefer Madness”. That iconic work, now viewed as laughable, was a melodramatic marvel depicting teenagers lured to using marijuana then driven to insanity, mayhem and murder.

On a more realistic note, a professional journal for psychiatrists this week confirmed that young people who are heavy users of marijuana suffer at least short-term significant cognitive impairment in areas such as learning, abstraction and attention.  Some studies show that unregulated “street” marijuana may contain many surprise ingredients, including fecal bacteria, heavy metals, pesticides and all manner of harmful nastiness. And the proportion of THC in the drug — the component that gives the “high” — has increased greatly through careful cultivation since the good ol’ hippie days of the 1960s and 1970s. Pot is anything but “natural.” Buyer beware.

But the “weed with roots in hell” is now legal for medical use in 29 states and the District of Columbia. Eight states have approved it for recreational use.

An October 2017 Gallup poll revealed that a whopping 90 percent of Americans support making marijuana available for medical purposes. Cannabis extracts high in CBD and low in THC have proven therapeutic for those suffering extreme pain and for patients with certain medical conditions. The same poll found 64 percent of Americans support legalization of marijuana for recreational use.  Some argue that legal marijuana would be safer and free of the “lawn clippings” found in street drugs. Although efforts to legalize marijuana in South Carolina for any purpose have failed thus far, families who desperately need medical marijuana are building support. With over half the states allowing medical marijuana, and bills pending in most remaining states, momentum is building toward legalization.

Before we hold hands and wax nostalgic for KC and The Sunshine Band, I interrupt this love fest to remind us that, despite legislation in several states, federal law classifies marijuana as an illegal narcotic. One Trump administrator foretold his intent to take a hard-line approach, saying, “Good people don’t smoke marijuana.”

Here’s what really happens. A young father came to my office with tears in his eyes. He and his family moved from Colorado to South Carolina so his wife could care for her dying mother.

Bob (not his real name) has a rare condition causing persistent seizures. A doctor prescribed  medication to help control the seizures and pain. It is the only medication that helped him enough to let him hold a steady job. The capsule contains medical CBD extracted from cannabis. A physician legally prescribed the medication in Colorado, which has allowed marijuana for medical use since 2000.

Bob found a good-paying job in Columbia that would permit his wife to care for her mother. He was tentatively hired, then asked to take a pre-employment drug test. Bob disclosed all of his prescribed medications, including the seizure medication. He even brought a statement from his Colorado physician about his serious medical condition and the necessity for the marijuana-based medication.

Of course, the drug test came back positive for THC. The employer refused to hire Bob, and Bob came to me.

Conflicts between state and federal marijuana laws

Herein lies the kerfuffle — the clash created by lack of uniformity among state laws, as well as the federal law trumping more expansive state laws. It gave Bob no comfort to hear me say the situation was “unfair” because it was devastating to him and his family. Bob had a real medical condition for which he was legitimately prescribed a medication in Colorado, but in South Carolina he could not hold a job if an employer was obligated or chose to have a drug-free workplace.

Likewise, an employer could not be forced to hire him as an accommodation under the Americans with Disabilities Act because the Act specifically excludes employees who use illegal drugs as defined by federal law.

So, as you enjoy Weed Day, don’t bring any marijuana into South Carolina; it’s illegal here. Buyer beware.

Malissa Burnette is a South Carolina Supreme Court certified specialist in employment and labor law. You can reach her at 803.904.7911 or