Marijuana laws present challenges for employers

Federal marijuana laws outlaw all marijuana use, sale, and production. But 33 states and the District of Columbia have legalized medical marijuana. Ten states and the District of Columbia have legalized recreational use as well. How do employers manage their workplaces with these contradictory laws? Well, it’s complicated.

Employers must craft a marijuana in the workplace policy that conforms to applicable state laws. The policy will have to address:

• Whether the employer will test for marijuana or tetrahydrocannabinol (THC), the mind-altering chemical in marijuana;
• Whether employees may or may not be under the influence of marijuana while working;
• How medical marijuana use is treated when accommodating employee disabilities; and
• What restrictions apply to each job in the workplace.

There is no one size fits all marijuana policy in the workplace. Each employer must develop a policy that fits the type of work performed and company culture. The policy must, of course, comply with all pertinent federal, state, and local laws.

Marijuana in the workplace

The public’s attitude toward marijuana use has changed dramatically over the years. In one recent public opinion poll, 62% of Americans support legalizing marijuana. Among millennials, the figure was 74%.

These evolving attitudes are reflected in marijuana usage. According to the Substance Abuse and Mental Health Services Administration’s (SAMHSA) annual survey, 15% of Americans 12 years of age and older have smoked marijuana in the last year.

According to a survey by the drug testing company, Quest Diagnostics, 4.2% of employment drug tests came back positive in 2017, the largest number since 2006. These figures include all illegal drugs found, including marijuana.

Weeding out bad applicants

In today’s tight job market, some employers have given up on pre-employment drug testing in order to fill empty positions. Sometimes it’s hard to find any candidate, let alone a marijuana-free one. Others have simply focused testing on harder drugs such as opioids and cocaine, perhaps assuming that marijuana usage is harmless.

Employers should consider certain marijuana facts when developing a drug testing policy. Marijuana’s effects include:

• altered senses (for example, seeing brighter colors)
• altered sense of time
• changes in mood
• impaired body movement
• difficulty with thinking and problem-solving; and
• impaired memory.

With exceptionally high doses, individuals have been known to hallucinate, have delusions, or even develop psychosis. These instances are very rare and the occasional user is unlikely to experience them. Claims that marijuana is a “gateway” drug are dubious. Employers should not assume marijuana users are more likely to also be using harder drugs.

With marijuana’s possible effects in mind, consider the jobs the potentially impaired employee may be performing. While impaired memory and thinking impact most jobs, some low-level jobs could likely be performed under the influence of marijuana. But operating heavy machinery while high is probably not a good idea.

Employers face a particularly tight labor market. How severely a complete marijuana prohibition would discourage applicants will vary from market to market. Employers have to make the call.

The medical marijuana drug test

Some employers have no choice but to drug test new hires and then perform random drug tests on existing employees. Employers regulated by the Federal Highway Administration, the Federal Aviation Administration, and the U.S. Coast Guard fall into this category.

In states where medical marijuana is legal, employers may still test for it. If the test comes back positive, the employer can request a copy of the prescription. If the applicant/employee fails to produce the prescription, then the results are presumably due to recreational marijuana use.

The employer’s next step depends on the state’s marijuana laws. Massachusetts’ medical marijuana law states that patients cannot be denied any right or privilege because of their medical marijuana use. A Massachusetts employer fired an employee after testing positive for THC. She sued and the state Supreme Court noted that the state’s disability law requires employers to provide a reasonable accommodation. Rhode Island’s medical marijuana laws are similar and a court in that state ruled in favor of a rejected applicant. Laws in Alaska, Arizona, Delaware and Minnesota explicitly spell out medical marijuana employee rights. They forbid an employer from firing or disciplining medical marijuana users for positive tests.

Other than those states mentioned previously, employers do not have to accommodate medical marijuana use in the workplace. Marijuana is illegal under federal law. Consequently, employers do not have to accommodate its use under the Americans With Disabilities Act (ADA).

Other testing issues

The most common testing times are pre-employment screening and as part of an evaluation of employees with job performance problems. In 2016, the Occupational Safety and Health Administration (OSHA) issued a rule limiting when employers could test for drugs. Under that directive, employers could only test when it believed drug use likely contributed a workplace incident. On March 31, 2017, President Trump rescinded that rule. OSHA now says that employers can drug test as part of a workplace safety program, including:

• Random drug testing;
• Drug testing unrelated to the reporting of a work-related injury or illness;
• Drug testing under a state workers’ compensation law;
• Drug testing under other federal law, such as a U.S. Department of Transportation rule; and
• Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.

If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

How to test

Employers should pick a reputable company to perform drug testing. Generally, these companies provide only a positive or negative result. This prevents the employer from learning of an employee’s disability or other medical condition. Forcing an employee to reveal a disability violates the ADA. Employees have the right to have the same sample retested if they believe the result was in error. They also have the right to explain a positive test such as being prescribed medical marijuana.

Each state has some law dealing with workplace drug testing, and they are all different. For example, 32 states require employers to pay for pre-employment drug screening and two others allow the applicants to pay up front but require the employer to reimburse the employee.

Many states have lifestyle discrimination laws that bar employers from disciplining an employee for legal, off-duty activities. Many lifestyle discrimination laws were enacted prior to marijuana legalization and how the two interact is not clear. Additionally, some cities and counties have their own drug testing ordinances. Consult with your attorney to determine which marijuana laws are applicable to each of your locations.

Your marijuana policy in the workplace

Work closely with your attorney when developing or revising your workplace marijuana policy. Your policy should be clear about what is and is not allowed. For example, employers generally can require employees using company vehicles to be drug-free. Unless state law says otherwise, employers do not have to tolerate marijuana-impaired employees in the workplace. Again, attorneys in states that grant protections to medical marijuana users will have appropriate language to use in your policy.