Workplace Considerations For Marijuana Use

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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?

Click map to view marijuana considerations by state

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%).

Your Process of Developing Your Corporate Program for Employee Use of Marijuana

The place to begin your policy-development process is to look at the state’s marijuana laws, other impacting state laws and court decisions that have set precedence in your state (or region). However, understand that because the marijuana industry is pervasive and growing, these laws are not static. As such, the research process will be very dynamic. The legal research performed one day can be outdated by the next week. Again, this is why it’s crucial to have partners in the process.

For example, in 2019, thirty-two state laws having to do with marijuana were passed between March 6th and April 26th – not all, but many of them directly or inadvertently affected employers. Another example, some laws opened the door for additional conditions to be eligible for a medical marijuana-recommendation; one offered a tax break for hiring people in recovery; some opened the door to legalizing THC levels that could be found in CBD products which might show up in an employee’s drug test; three of the laws address the legality of testing public-sector employees.

Some of the many employment-impacting laws of a state that can come in to play include*:

  • Authorities to which the employer is obligated (e.g., Department of Transportation)
  • The state’s legalities of using marijuana medically or recreationally
  • State disability and discrimination protections
  • Workers’ compensation protections and obligations or requirements under a premium discount/rebate program
  • Unemployment protections and obligations
  • Drug-testing per se laws of the state
  • Specifications for under-the-influence under state law(i.e., marijuana laws, highway under the influence of drugs)
  • Off-duty use and lawful activities statutes
  • State-specific OSHA guidelines and requirements

*Be sure to refer to the NDS Checklist of Impacting Issues to Research to see a more complete list.

Although directives found in laws and court decisions are essential and guiding principles, there will be softer, more subjective, company-specific issues that will factor into the employer’s direction with their policies.

  • How large is the company?
  • How many states are there employees working?
  • What type of work is done by the company?
  • How many safety-sensitive positions are there?
  • What are the budget considerations of the employer?
  • What is required for ease of operations?
  • What is critical to the public image of the company?
  • What is the culture of the company (e.g., prevalence/tolerance of drug use, rates of positive tests, management’s views on the overall use of marijuana)?
  • What is the degree of risk tolerance of the company’s owners and leadership?

In the end, you will want to have a well-researched, well thought-out approach (i.e., policies and operational procedures) regarding marijuana for each state in which you have employees working. For maximum return-on-investment, productivity, health and safety of your employees and company, implement all the components of a best-practice, comprehensive drug-free workplace program:

  • Written policy and operational guidelines,
  • Advance notice to employees about the company’s position as it relates to marijuana use and employee education,
  • Supervisor training of knowledge, skills and whatever paperwork to ensure support and enforcement of your policies and programs,
  • Drug testing, and
  • A plan for assisting any employees who need it.

Get Started

So, where on earth do you begin? The place to start is identifying and selecting qualified professional(s) to help you research your responsibilities and options within a state. Be a critical consumer when it comes to selecting your source(s) of assistance. Verify through experience and references that your attorney-of-choice and specialized consultant for drug-free workplace operations and procedures know the issues and the options within your state(s) of operation. Use the accompanying National Drug Screening’s (NDS) Checklist of Impacting Issues to Research and ask your selected professional(s) if they understand the issues itemized there that need to be researched.

Don’t be shy! The research and advice you receive can make the difference. You want to have a program to deal with marijuana and protect the safety, health and productivity of your workforce and your company – not become an expensive test case on the issue possibly helping to establish new law in this arena!

DISCLAIMER: This resource, developed by Working Partners®, is meant for educational purposes only. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. An experienced attorney with proven knowledge about these issues should be consulted for legal advice. In addition, an experienced drug-free workplace professional should be relied upon for assistance on operational issues for your company’s program.