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Summary of differences between federal and state regulations
Medical marijuana
No adverse action, including follow-up testing, may be taken by the employer if the employee presents a reasonable explanation or medical opinion indicating that the original test results were not caused by the illegal use of controlled substances or by alcohol consumption. If the employee presents a reasonable explanation or medical opinion, the test results must be removed from the employee’s record and destroyed.
An employer may include in any contract a provision prohibiting the use of medical marijuana for a debilitating medical condition.
No cause of action
The law does not permit a cause of action against an employer for wrongful discharge or discrimination.
Additional rights
Other general employee and employee rights with regard to marijuana use are part of the state’s marijuana law.
Workers’ compensation benefits
Medical marijuana users who fail a workplace drug test are eligible for workers’ compensation benefits.
Under state law, an individual who fails or refuses to take a drug test in violation of an employer’s written workplace drug policy is disqualified from workers’ compensation benefits. However, there is an exception for medical marijuana users.
Recreational marijuana
Marijuana is a lawful product under Montana state law. An employer may not discriminate against an employee who legally uses marijuana when off-duty and away from the employer’s premises.
Employer protections
Under Montana law, an employer may:
- Prohibit the use and possession of marijuana in the workplace or on the employer’s property, during work hours, and on the employer’s premises,
- Decline to hire, discharge, discipline, or otherwise take an adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of employment because of an employee’s violation of a workplace drug policy or for working while intoxicated by marijuana or marijuana products,
- Discipline an employee if marijuana use affects the safety of other employees,
- Discipline an employee if marijuana use affects the employee’s ability to perform job-related employment responsibilities,
- Take an adverse action if an employee’s marijuana use violates a personal service contract with the employer and the unique nature of the services provided authorizes the employer to limit the use of marijuana.
A nonprofit organization that has a primary purpose or objective of discouraging the use of marijuana may take an adverse action against an employee who uses marijuana when off-duty.
An employer may take action based on the belief that the actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement.
The state’s marijuana law does not permit:
- An individual to operate a motor vehicle while under the influence of marijuana,
- Use of marijuana or marijuana products in a location where smoking tobacco is prohibited,
- Consumption of marijuana or marijuana products in a public place,
- Conduct that endangers others,
- Undertaking a task while under the influence of marijuana if doing so would constitute negligence or professional malpractice.
Medical opinion
No adverse action, including follow-up testing, may be taken by the employer if the employee presents a reasonable explanation or medical opinion indicating that the original test results were not caused by the illegal use of controlled substances or by alcohol consumption. If the employee presents a reasonable explanation or medical opinion, the test results must be removed from the employee’s record and destroyed.
No cause of action
The law does not permit a cause of action against an employer for wrongful discharge or discrimination.
State
Contact
Department of Public Health and Human Services, Montana Marijuana Program, http://dphhs.mt.gov/marijuana
Regulations
Montana Marijuana Act, Montana Code Annotated 50-46-301 to 50-46-344, http://leg.mt.gov/bills/mca_toc/50_46_3.htm