Are You Prepared to Deal With Marijuana in the Workplace?

TASA ID: 321

Medical marijuana is now legal in 23 states and Washington D.C. which is proving to be confusing for businesses, employees and job applicants. It becomes even more confusing because federal law classifies marijuana as a schedule 1 drug -- the same as heroin and overrides state laws.

So how does this affect your company policies? There are so many issues and questions including:

In 2013, the number of workers who tested positive for drug use had its first year-over-year increase in a decade, as states and municipalities relaxed restrictions on marijuana use. One drug testing company reported positive results for marijuana use in the workforce rose 6.2 % in 2013 and that was before many states legalized marijuana.  As an employer, you may face potential legal challenges from employees who say that state law allows them to use marijuana away from the workplace.

Although state laws do vary, what is true in every state is that these laws don’t require employers to permit drug use in the workplace or to tolerate employees who report to work under the influence. For multistate employers, the issue becomes even more complex. Anything that impacts an employee’s ability to do their job becomes a concern for the employer. This means that employers may institute drug-free-workplace policies but how they are defined and implemented is important.

Pre-employment drug screening is legal in most states and most states require that the applicant be notified. However, since conducting medical tests on employees is in violation of federal antidiscrimination laws, it may be wise to require a drug test only after the applicant has accepted the job offer. A conditional offer that states the job is theirs provided they pass a background check and a drug test should minimize any issues. Be aware; however, that some states have laws that prevent an employer from discriminating against an applicant or even a current employee who tests positive for marijuana unless doing so would cause the employer to lose a monetary or licensing benefit under federal law.

Federal regulations still prohibit marijuana use and under these regulations, several classes of employees must undergo regular testing for marijuana. The Department of Transportation has issued guidance for its Drug and Alcohol Testing Regulations, stating that “it remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s regulations to use marijuana.” Safety-sensitive transportation workers include pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains and pipeline emergency response personnel, among others.

In addition, the Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for someone with a disability, even if that person is a registered medical marijuana patient. The Ninth U.S. Circuit Court of Appeals has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”

Since there appears to be differing and inconsistent regulations, what should a company do to ensure both compliance with state and federal laws and protection of workplace safety?  Regardless of personal feelings about drug use, all employers need to understand the legal, cultural and contractual issues involving drug testing in the workplace for both employees and job applicants. Here are some basic suggestions:

• Review your state’s laws on discrimination against marijuana users. Make sure your policies are consistent with state anti-discrimination statutes.
• Continue to comply with federal regulations.
• Review your drug-use and drug-testing policies to ensure that they clearly explain your expectations regarding impairment, marijuana use outside of company time and drug testing.
• Make sure you are prepared to consistently follow your stated procedures.
• Make sure you have communicated your policy to all employees and clearly stated what is expected of them
• As part of your review, articulate whether you wish to ban all employee drug use or merely impairment. If you ban all drug use, you can institute a zero-tolerance policy based on the fact that you expect all employees to be clear headed in order to minimize risk to themselves and others.
• Train your managers about confidentiality issues. This is important in relation to sensitive employee information which includes drug-test results and requests for exemptions for medical conditions for which marijuana is prescribed. If they suspect any drug or alcohol use by an employee they should immediately refer the situation to HR.
• If you are unionized, be prepared to have marijuana come up in future collective bargaining and termination negotiations.

This is an ever-changing issue and one that can have serious legal and financial implications to a business. There are currently two bills before Congress that would reclassify marijuana as a schedule 2 drug, allowing for federally-funded medical marijuana research. But for now, review and tighten your policies and be aware of all potential legal issues both federal and state.

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

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