Workplace Considerations For Marijuana Use
FINDING ANSWERS TO YOUR QUESTIONS ABOUT MARIJUANA IN THE WORKPLACE
Employers Have So Many Questions ... Determining Answers Is Complex!
Employers have a lot of questions around how to handle employee use of marijuana:
- Should I continue testing for marijuana?
- Can I test per the law?
- What action should be taken if an employee comes forward and announces marijuana use for a medical condition?
- What action can I take if the employee who tests positive says they used their medical marijuana last night and not at work or, if they say they legally used recreational marijuana off-duty? Or they claim their positive test was caused by the use of a "legal" CBD product?
- In a state requiring accommodation of the medical use of marijuana, do I have to accommodate if the employee is in a safety-sensitive position?
Unfortunately, the path to answering these and many other questions is ... complicated!
Although marijuana is still illegal at the federal level, over two thirds of the country has legalized marijuana use for medical conditions and about a dozen states have legalized it for recreational use (adult use) of marijuana (as of 9/15/19). However, all states that have legal recreational use of marijuana also have legalized medical use marijuana. No two state’s marijuana laws are the same, and these laws are changing constantly due to legislation and court decisions.
Additionally, use of CBD products can result in a positive marijuana test if they contain triggering amounts of THC (the ingredient in marijuana that causes a “high”). So, it is relevant to know that there are states which have passed laws addressing low-THC in CBD products. (Refer to National Drug Screening’s (NDS) Provided Checklist of Impacting Issues to Research for greater understanding of this topic.)
So, beyond the variances in marijuana laws across the U.S., there are other laws and issues that impact those marijuana statutes. State marijuana laws do not exist in a silo and can have relationships with other federal and state laws, and authorities addressing such things as disability, discrimination, highway safety (under the influence measurements), labor and employment (i.e., unemployment, workers’ compensation), commerce, taxation, drug-testing per se, criminal, state OSHA, and more.
In some states for example, disability protections have expanded to protect an employee’s use of marijuana. Case in point, Nevada specifically says that, with only limited restrictions, employers cannot deny employment to a candidate who tests positive for marijuana. Effective Spring 2020 in New York City, employers will be prohibited from even including marijuana in a pre-employment drug test panel. Many states permit employers to take adverse action if the employee is under the influence of marijuana, but do not define “under the influence.” And a few states, like Arizona, stipulate that a positive test, alone, is not sufficient to designate the employee “under the influence.”
Is your head spinning yet? As we said, it is complex!
How to Use This Article
This article serves as background to the various marijuana issues facing you, the employer, as you develop or adapt a state-specific, drug-responsible approach (aka drug-free workplace program) for health, safety and productivity.
The impacting issues are diverse, and the answers cannot be found easily in one place. Research will need to be done. As an employer, you will be best served to get the assistance of knowledgeable professionals. We suggest you partner with an experienced legal counsel and a specialized drug-free workplace consultant for guidance in the development of your operational policies. They can help with the necessary legal research and help explore the operational options available for the who, what, how and where of your corporate program to deal with employee use of marijuana. Coupled with your expertise and insight about your company, this collaboration will result in policy and procedures that are lawful and appropriate for your workplace.
What Are Constants ... To Date?
An employer’s policies and operations regarding an employee’s use of marijuana will differ in each state in which you operate. However, although there is a gargantuan amount of grey to be addressed, there are some universal black and white issues – constants you can rely on (at this point):
Pertaining to state-specific laws...
- States have passed their own laws about marijuana and, except for specific instances, the federal government is not pursuing protection at the state level (in part because use is too prolific, and pursuit is too costly).
- Every state where marijuana is legal has adopted their unique version of a comprehensive law governing marijuana - e.g., what's legal; who is qualified to use it; the administration of a system; taxation; where it can be accessed/purchased and used; any restrictions for use; and employee and/or employer protections related to such things as discrimination, accommodation, criminal, and employment law.
Related to the workplace...
- Employment-specific protections regarding marijuana vary widely from state to state.
- No state has made it a requirement to allow an employee to be on the job under the influence.
- No state requires employers to allow employees to use marijuana on the job.
- Currently no drug test can determine impairment based on a concentration level of THC or metabolites.
And about the drug...
- Because marijuana is still illegal at the federal level, there is no such thing as a prescription for medical marijuana, only a recommendation from a medical professional (as specified in the law).
- The potency of marijuana today is much stronger than the previous eras (e.g. 1960, 70, 80, 90s).
- The marijuana available for purchase at a dispensary, as per recommendation, is the same substance that is bought illegally on the street.
- The use of the marijuana has mind-altering capabilities.
And then there are environmental factors that amp up the situation...
- America has a withering employable workforce - many employers are scrambling for employees.
- Marijuana is the most commonly detected "illicit' substance in drug tests.
- The positivity rate in workplace drug testing has increased steadily (i.e., 2012-2013 +5%, 2013-2014 +14.3%, 2015-2016 +4%, 2017-2018 +8%).