... Medical Marijuana – Drug Free Workplace – Drug Testing
With many States continuing to consider medical and recreational marijuana legislation, employers may have decisions to make and policies to update. Employer drug free policies run the gamut of what they allow, with companies that have government contracts being more likely to have zero-tolerance policies because such policies are mandated by the federal government. DOT regulated companies have no choice, use of marijuana by DOT covered safety sensitive employees is prohibited by Federal law and this supersedes any State laws.
In whatever State an employer does business, human resource officials will need to understand how their state’s new medical marijuana laws will affect employers and employees. Some states have addressed employer policies in their medical marijuana statutes and some have not. A big question remains and will take several years for courts to decide – Can State laws require employers to accommodate something that’s illegal by federal standards?
So far court decisions in other states have been favorable to employers. It is not certain as to whether that balance will change as more employees take their cases to courts.
If we look at the Federal Americans with Disabilities Act which mandates that employers accommodate workers with illnesses that rise to the level of disability, it is clear that the Act does not protect current users of illegal drugs. So will the courts rule that employers can discriminate against users of medical marijuana?
If we look at safety concerns, an employer would likely not allow a person regularly smoking marijuana to operate heavy machinery, drive big rigs or work in other safety sensitive positions. Company drug free workplace policies must be updated and revised to determine what positions are safety sensitive and to address the State’s current medical or marijuana laws.
Some employers might consider policies that offer some reasonable accommodations if the employee holds a valid medical marijuana card; if it’s not a safety issue; if it’s not an undue hardship for the employer; and if the employee can continue to perform all job duties. Employers are also concerned about potential liability costs if there is an accident and an employee tests positive for pot use.
There is also a huge challenge in this whole arena of determining of when an employee smoked marijuana and if the employee is impaired at work. Unlike alcohol testing, current marijuana testing methodologies will not prove impairment. Many will have an opinion that if employers want to fire somebody that is high on marijuana, they can and they should. Just like they should fire somebody that came in drunk as a skunk after lunch, after having too many beers. However that opinion might also be that employers should not fire someone who is taking marijuana in their own time and who is not impaired or intoxicated at work.
Let’s provide some recommendations for employers in medical marijuana jurisdictions. First and foremost for DOT regulated employers and employers who have federal contracts or are otherwise subject to federal regulations concerning drug-free workplaces; your practices should not need to change. Employers that are not subject to federal drug testing regulations should review their drug free workplace and substance abuse policies to ensure compliance with local and state law. In those states that do provide for some form of employment protection, you should carefully revise your policies to be consistent with those laws. Also very important, employers should train their supervisors and managers to recognize signs of impairment (whether due to marijuana, alcohol, or other substances) and how to deal with inquiries from employees regarding their use of medical marijuana.
Employers in States with medical or recreational marijuana laws should speak with their human resource attorneys and/or drug testing professional consultants to shore up their drug free workplace policies. It is clear that these drug free workplace policies need to be revised or re-written.