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The Many Challenges of Dealing With Medical Marijuana In the Workplace

Although federal law classifies it as a Schedule 1 drug (like heroin), medical marijuana is legal under the laws of 23 states.

In this ever shifting landscape, what policies must employers create, and how will they be implemented and communicated, about “drug testing,” “zero-tolerance” complying with federal law but not violating state law permitted medical or recreational usage, and balancing “employee privacy protection” against “workplace safety and productivity” concerns?

Increased workplace marijuana usage

Even before many states legalized marijuana usage, the number of workers testing positive for marijuana use increased by 6.2 percent in 2013 alone.

Anything impacting an employee’s ability to perform their job function is of concern to employers and, although state laws vary, none presently require employers to permit drug use in the workplace or tolerate employees reporting to work “under the influence.”

Connecticut, Illinois, Maine and Rhode Island have laws protecting medical marijuana patients from employment discrimination on the basis of their cannabis usage. Arizona and Delaware bar employers from discriminating against registered medical marijuana patients, including those with the drug in their system, unless they possess, use or are under the influence of marijuana during work hours.

Colorado’s Coats v. Dish Network opinion provides that despite a “lawful activities statute” prohibiting employers from firing employees for engaging in lawful activities off the job, because marijuana is illegal under the federal Controlled Substances Act, its use isn’t lawful and can remain a valid basis for termination of quadriplegic (or any other employee) licensed to use medical marijuana.

Thus, although employers may institute drug-free-workplace policies, how these policies are defined and implemented is critical, particularly for multi-state workplaces in jurisdictions having conflicting marijuana usage laws.

Drug screening and workplace usage

Pre-employment drug screening is legal in most states and requires that the applicant be notified. However, because medical testing of employees may violate federal anti discrimination laws, requiring a drug test only after the applicant has accepted the job offer may be the safer practice.

Federal regulations still prohibit marijuana use and require several classes of employees to undergo regular marijuana testing.

President Ronald Reagan issued an executive order creating a federal drug-free workplace and the Drug-Free Workplace Act of 1988 requires employers to maintain a no-drug environment in order to become a federal contractor or receive federal funding. Thus, federal employees and employees of companies working with the federal government may be terminated for drug use.

The U.S. Department of Transportation’s (DOT) Drug and Alcohol Testing Regulations bars “any “safety-sensitive employee” subject to drug testing under DOT’s regulations to use marijuana,” which includes 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.

Similarly, 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 a registered medical marijuana patient, and has been interpreted by the federal appeals court as not protecting “medical marijuana users who claim to face discrimination on the basis of their marijuana use.”

Workplace medical marijuana policies

Although two bills before Congress seek to reclassify marijuana as a Schedule 2 drug, myriad federal and state issues presently require clear policies uniformly implemented and clearly communicated.

At the very least, complying with conflicting state and federal “workplace drug testing and marijuana usage” laws and regulations requires that employers:

  • Determine whether policy’s objective is barring impairment or drug use, the latter of which allows instituting a zero-tolerance policy expecting all employees to be clear-headed in order to minimize risk to themselves and others;
  • Review federal regulations and state anti-discrimination and marijuana usage laws to ensure that the policies are consistent and compliant;
  • Update drug-use and testing policies to ensure that they clearly explain “drug testing, impairment, and marijuana use outside of the workplace” expectations;
  • Implement systems and controls ensuring consistently following stated procedures;
  • Communicate policies to all employees clearly, stating what is expected; and,
  • Train managers about confidentiality issues regarding sensitive employee information including drug-test results and requests for exemptions for covered medical conditions for which marijuana is prescribed.
Steven SchainSteven Schain

Steven Schain

2019 National Law Journal “Finance, Banking, & Capital Markets Trailblazer” award winner, Steve Schain is Senior Counsel at Smart-Counsel, LLC, a 100% female owned boutique Cannabis law firm.  Steve  represents entities, governments and individuals in litigation, regulation and compliance, financial services, license applications and entity formation. Reach Steve at [email protected]

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