Twenty states and the District of Columbia have decriminalized possession of marijuana for medical use. Washington and Colorado allow recreational use, as well. But federal law still classifies marijuana as a Schedule I drug—one with no legal use.
“This uncertain regulatory scheme places employers in the delicate position of attempting to comply with divergent laws while maintaining order and safety in the workplace,” said Timothy P. Van Dyck and Nathanael Nichols, attorneys at Edwards Wildman Palmer LLP in Boston.
One Point of Agreement
Although state laws vary, what is true in every state is that these laws don’t require employers to permit drug use in the workplace or tolerate employees who report to work under the influence, according to Ingrid Fredeen, J.D., vice president of advisory services at NAVEX Global. “When employees walk on to the job, they become an employer’s responsibility,” she said. “Use that impacts an employee’s ability to do their job, quickly and legitimately becomes a concern for the employer.”
She pointed out that alcohol use is legal, but companies have a right to prohibit employees from working under the influence of this substance. So, therefore, employers certainly may institute drug-free-workplace policies, which, she noted, “are in place to help ensure that employees come to work ready and able to work and that they don’t endanger others while they are working.”
But beyond that, the issues become more complex, and sometimes more difficult to resolve, Fredeen said. For multistate employers the issue is even more complex. “Reconciling varying state laws on everything from legalization, permitted use and lawful drug testing is a challenge,” she added.
Differences in States’ Laws
Three states, Connecticut, Maine and Rhode Island, have laws prohibiting organizations from discriminating against workers solely based on their status as medical marijuana patients. Arizona and Delaware go even further, barring employers from discriminating against registered and qualifying patients who test positive for marijuana, with an exception for employees who are impaired in the workplace.
Some states explicitly exempt businesses from accommodating marijuana use in or around the workplace. For example, Colorado’s law states that it “is not intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or affect the ability of employers to have policies restricting the use of marijuana by employees.” Similarly, the regulations implementing Massachusetts’ medical marijuana law make clear that employers are not required to offer “accommodation of any on-site medical use of marijuana in any place of employment.”
The courts have also supported employers’ efforts to maintain a drug-free workplace. In Colorado an appellate court has held that the state’s “lawful activities” statute did not protect an employee from termination after he tested positive for marijuana, despite his status as a licensed medical marijuana patient. The court reasoned that, because marijuana is still illegal under federal law, its use is not a “lawful activity” receiving protection.
The 6th U.S. Court Circuit of Appeals has also held that “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.”
Federal Law and Regulations Add to Challenge
Federal regulations still prohibit marijuana use. And under the regulations, several classes of employees must undergo regular testing for marijuana. For example, the Department of Transportation has issued guidance for its Drug and Alcohol Testing Regulations, stating that “it remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s regulations to use marijuana.” Safety‐sensitive transportation workers include 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, among others.
In addition, 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 that person is a registered medical marijuana patient. The 9th U.S. Circuit Court of Appeals has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”
What Should Employers Do?
Given these varying and potentially inconsistent requirements, what should a company do to ensure both compliance with state and federal laws and protection of workplace safety?
Van Dyck and Nichols offered the following suggestions for employers:
*Review your state’s laws on discrimination against marijuana users. Make sure your policies are consistent with state anti-discrimination statutes.
*Continue to comply with federal regulations.
*Review your drug-use and drug-testing policies to ensure that they clearly explain your expectations regarding impairment, marijuana use outside of company time and drug testing.
*Make sure you are prepared to consistently follow your stated procedures.
*As part of your review, articulate whether you wish to ban all employee drug use or merely impairment.
Employers should be aware that the presence of THC (the active ingredient in marijuana) in the body may not indicate someone is presently impaired, Van Dyck and Nichols noted. “While an employee may only feel the effects of marijuana for a matter of hours, THC can be detected for several days—or even weeks—if the employee is a frequent user.”
Make sure you have communicated your policy to all employees and clearly stated what is expected of them, Fredeen said.
And train your managers about confidentiality relating to sensitive employee information—including drug-test results and requests for accommodations for medical conditions for which marijuana is prescribed (especially under state law), she added.
If you choose to have a zero-tolerance policy, you should be prepared to answer additional questions, Fredeen said. How will you handle employee recreational use that is permitted by law? Will you look to federal law to justify a true zero-tolerance policy? Are you an organization that is required to abide by federal law?
As more states pass laws about medical and recreational marijuana use, this area will only become more complicated, Van Dyck and Nichols cautioned. “Employers should closely monitor developments in their states and be prepared to periodically remind employees of their expectations and requirements.”
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.