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It’s the $64,000 Question: Can Medical Marijuana Be Banned From the Workplace?

By K.G. Trout

Last month in Washington, D.C., there was a Society of Human Resource Management (SHRM) conference where one session got into a topic that troubles and confounds human resource directors everywhere: Ho do they deal with medical marijuana in the workplace?

Or to put it another way, as the Washington Business Journal phrased it, “Can a private employer stop employees from bringing doctor-prescribed marijuana to work?”

It’s a great question, and like with most great questions, it doesn’t have an easy answer.

Marijuana is a hot workplace topic

Jim Reidy, an attorney and shareholder at Sheehan Phinney Bass + Green PA, a New Hampshire-based law firm, summed up the confusion over the state if workplace law concerning medical marijuana when he stated, “It’s evolving. That’s why this topic is really hot for employers right now.”

The reason this is a hot workplace topic right now is that in many states (with more coming) medical marijuana may be legalized at the state level, but managers and business executives worry about the inherent conflicts with the hard-line stance of the federal government where legal cannabis is concerned.

It’s yet another reason why the Feds really need to take action, because the state-federal marijuana conflicts are only getting bigger as more and more states decide that legalizing marijuana isn’t such a bad thing to do.

What interested me from Jim Reidy’s appearance at SHRM was his list of the key marijuana-related workplace questions he has been getting, and the Washington Business Journal was kind enough to detail them.

Workplace issues to consider concerning cannabis

Here are some of the takeaways they listed:

  1. Yes, marijuana — and other drug use — really is that common. A report released in 2014 by national drug testing service Quest Diagnostics showed 3.7 percent of 8.5 million tests came back positive in 2012. “That’s pretty significant when you consider that’s 314,500 people,” Reidy said.
    While Quest found workplace drug tests with positive results for marijuana increased about 5 percent across the U.S. between 2012 and 2013, the increase in positive tests went up more dramatically in Colorado and Washington in the year just before recreational use became legal. The states saw positive tests go up by 20 and 23 percent, respectively.
  2. Yes, employers can conduct workplace testing for marijuana in places where it is now legal, such as Washington, D.C. Marijuana is still illegal under federal law even if limited recreational use is allowed under District law. That means employers remain free to conduct workplace testing for the drug. And in some cases, such as for certain federal employment and contracting positions, it’s required. And although it may seem like a buzz kill for employers to worry about what employees are doing on their weekends, there are some clear benefits for using testing to deter employees from drug use, Reidy said. Studies have found substance abuse by employees results in higher health care expenses for injuries and illnesses, higher rates of absenteeism, reductions in job productivity and performance, and higher workers’ compensation and disability claims. The U.S. Department of Labor estimates drug use and abuse in the workplace costs between $75 billion and $100 billion annually in the U.S. His key point: Remember, employers don’t have to conduct a drug test to discipline an employee for reasonable suspicion of drug use, he said. If you do test, make sure you’re up front with employees about drug testing policies, particularly as laws evolve at the local level. And always use a certified testing facility and be consistent in your discipline to avoid problems, Reidy said.
  3. The laws are changing fast. There have been a number of legal challenges regarding medical marijuana brought by employees in other states. So far, it appears courts are siding with employers who test and terminate employees who’ve used medical marijuana, Reidy said. For instance, a judge ruled in a case against Wal-Mart that Michigan’s medical marijuana law presents nothing about private employment rights. In a Colorado case involving a quadriplegic employee arguing wrongful termination for use of medical marijuana in his home, a judge ruled in favor of the employer, Dish Network. This is still a case to watch, Reidy said, because it was appealed to the state’s Supreme Court.

Stay on top of local marijuana laws

Reidy also said that companies should expect many more legal challenges to be brought regarding legal marijuana use in the future, and that’s pretty much a given considering the fluid and rapidly changing state of marijuana legalization in so much of the country.

In other words, businesses need to be on top of their local marijuana laws, and sensitive to the fact that they have changed and are likely to continue to do so. What may seem clearcut today may not be so much so in the near future.

HR and the managers they work with need to be ready for this, because workplace policies will need to be changing too.

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