Employers across the nation have long incorporated into their workplace policies a statement providing that their offices, job sites, and factories are “drug free” and that they take a “zero tolerance” approach to the use of drugs.
The zero tolerance movement has enjoyed considerable popularity in the past 40 years, even meeting with official sanction from the U.S. government in its Drug Free Workplace Act of 1988. These policies have closely followed, and found encouragement from, the war-on-drugs culture so predominant in our society since the same was articulated by Richard Nixon in the 1970s.
But times, as they say, are a-changing.
In the past 10 years, we have seen a profound increase in the use and abuse of prescription opiates, along with an attendant increase in heroin addiction. At the same time, and for not altogether unrelated reasons, we have seen a paradigm shift in the way in which cannabis has been viewed from a legal perspective. Today, all but seven (7) states, and a host of localities, have in place legislation either decriminalizing or actually permitting the use of cannabis (or its derivatives) for medical and/or adult use (or “recreational”) purposes.
Notwithstanding this momentous shift, cannabis remains absolutely illegal according to the Federal government, maintaining its position as a Schedule I substance. We are left with a landscape in which worker productivity can very well be far more damaged by the use of legal, prescribed narcotics than substances which the federal government deems completely and totally illegal.
In light of these recent developments, drafting a workable substance abuse policy is perhaps more difficult today than ever. Employers must ensure the safety and protection of their workforce, customers, and property; however, they are also increasingly expected to provide working environments which accommodate rather than punish. The result is that the tried and true Zero Tolerance Policy may no longer be appropriate — even if it may still in some jurisdictions be legal.
Let’s be clear about several things, however. If your business has federal contracts over $100,000 or is a federal grantee of any kind, it will be subject to the federal Drug Free Workplace Act and must comply with the provisions of that law. Moreover, if your employees are drivers, pilots, or involved in other “safety sensitive” jobs under the aegis of the federal Department of Transportation, the Omnibus Transportation Employee Testing Act of 1991 also requires strict drug testing.
Additionally, as both a cannabis and a management-side employment attorney, I do not advocate for acceptance in the workplace of dangerous behaviors associated with being high, drunk, or under the influence of any substance — whether lawfully prescribed or otherwise. Employers have an obligation, both legal and moral, to ensure that their workplaces are safe. Permitting the use of intoxicating substances during the work day, or the behavior associated with intoxication, is neither advisable nor appropriate.
But what about the employee who uses cannabis on his or her own time where such use neither interferes with nor impacts their work? Does it matter if the employee uses cannabis pursuant to a doctor’s certification and obtains the product from a legal, licensed dispensary? Or what if the employee uses the cannabis for “adult-use” or “recreational” purposes in a state where the same is permitted? Although an employer is often permitted to prohibit such conduct, is it wise to do so?
Whether or not an employer is situated in a medical cannabis State, employers must still contend with the Americans with Disabilities Act. Under that law, discrimination against an employee having, or perceived as having, a disability is rendered illegal. The ADA requires employers to provide disabled employees a reasonable accommodation to permit them to perform the essential functions of their jobs.
The conundrum employers face is that many, if not all, of the conditions considered “qualifying” in medical cannabis states are also disabilities under the ADA. Although the use of medical cannabis may not be a required or contemplated accommodation under the ADA (since the federal government prohibits any use of cannabis), it may be reasonable under state law equivalents or a pragmatic way to maintain an excellent employee notwithstanding her or his treatment and use of cannabis.
Moreover, the Federal Equal Employment Opportunity Commission has made clear in the past that it will pursue claims where employees are terminated for the use of medical cannabis if there is evidence supporting the conclusion that the reason underlying the termination is the employee’s disability. Workers’ compensation laws may also be implicated, although with respect to workplace accidents most such laws permit an employer to dispute claims where the employee was intoxicated or impaired.
A necessary addition to this mix is the fact that many of the new medical cannabis states expressly forbid discrimination based on the use of medical cannabis. Arizona, Connecticut, Delaware, Maine, Minnesota, Nevada, Pennsylvania, and Rhode Island, among others, all prohibit refusing to hire, penalizing, or firing an employee for their use of medical cannabis or their status as a cannabis patient, or terminating an employee as a result of a positive drug test for off-duty cannabis use.
As such, there are currently states in which a zero tolerance policy is actually illegal under state law. Paradoxically, however, many states with legal medical cannabis programs actually require drug-free workplaces for its licensed cannabis businesses.
Given the current status of the law, what is a responsible employer to do?
The first step is to ascertain whether a federal law or prevailing safety concern requires your business to maintain a drug-free workplace policy and/or mandatory drug testing. If no such law applies, it may be advisable to work with your employment attorney to draft a workplace substance abuse policy which aims to target and punish unacceptable behaviors rather than a positive drug screen. Of course, there may still be drugs which you do not want anywhere near your workplace (e.g., cocaine, methamphetamine, LSD), but with respect to substances such as cannabis, it may be advisable to incorporate a more nuanced policy.
Your substance abuse policy should directly address — and forbid — behaviors which pose a safety risk to your staff, clientele, and property; it should also be drafted in such a way to ensure that worker productivity remains optimal. But your business may very well be best served by softening your “zero tolerance” stance to permit the lawful use of substances such as cannabis. In other words, “zero tolerance” may be a relic of the past.