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SCIENCE AND TECHNOLOGY LAW: Medical Marijuana Legalization and OSHA Anti-Retaliation Rules

By Peter J. Gillespie

In recent years, workplace drug tests showing positive test results have increased steadily to a ten-year high. Employers concerned by these findings face an uphill battle given the recent loosening of restrictions on marijuana use at the state level. Moreover, despite the fact that marijuana remains illegal under federal law, the Occupational Safety and Health Administration (OSHA) has somewhat protected drug users from work-related discipline stemming from marijuana use. Specifically, based on findings from the National Highway Traffic Safety Administration (NHTSA), OSHA recently contended that mandatory drug testing of employees following a reported injury is a form of retaliation that violates section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. section 660(c). Moreover, OSHA has further advised employers that the agency does not view current drug testing methods as an effective way of determining whether a drug-related impairment caused or contributed to a workplace accident.

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