In last week’s Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue.

To help lower your temperature, over the next several days we’ll be answering your medical-related questions.

Today’s topic: Medical Marijuana.

Here are the questions . . .

Are we required to hire a person who tests positive for marijuana on a pre-employment drug test if they have a prescription for it? If a person takes medical marijuana to reduce side effects from cancer treatment or for some other medical reason, must we accommodate that? Would we have to create a room like for nursing mothers — a “marijuana den,” so to speak?

Here are the answers . . .

General Principles

Medical marijuana laws vary by state. Before taking any action, please check with your favorite employment lawyer to see what your state law provides.

Generally speaking, however, employers may refuse to hire employees because of marijuana use (especially in states where it’s illegal). Also, employers generally do not have to accommodate marijuana use. In other words, you don’t have to set up a “marijuana den” with piped-in Grateful Dead music.

The Law Is Evolving

We’re getting more and more questions on marijuana-related issues. We recently asked an outside law firm to do some research to see what actual lawsuits are being filed on this topic. It was unable to find a single case where a plaintiff successfully sued under either of the theories described above (but did find four cases where the plaintiff lost).

Don’t let that lull you into a false sense of security. The law in this area is rapidly changing and a successful suit could happen any day — especially in California or Colorado. Also, remember that while you may not have to accommodate marijuana use, you may have to accommodate cancer treatment (which could include a request to use medical marijuana). Engage in the interactive process required under the ADA for all such requests. While marijuana could be an accommodation depending on your state’s law, employers are not necessarily required to grant the employee’s preferred accommodation if other reasaonble accommodations are available.

Tune in tomorrow for more answers to your questions.