While marijuana use, distribution, and possession remain illegal federally, an increasing number of states are enacting new laws for medical and recreational marijuana. These rapid authorizations are changing the legal landscape, so employers must navigate what legal marijuana use means for their workplace.
According to June data from the National Conference of State Legislatures, all but three states—Kansas, Nebraska, and Idaho—have legalized or decriminalized some form of marijuana, with 23 states and Washington, D.C., allowing for recreational use. Some states—including California, New York, and Minnesota—have also passed laws protecting employee use of marijuana outside of working hours.
Most marijuana laws are relatively new and largely untested, so the courts have provided only limited guidance. To ensure compliance with federal and ever-changing state recreational marijuana laws, employers must do their homework proactively—for each state in which they have employees—and should be prepared to continually update policies and practices to keep up with changing laws and attitudes.
Employers looking at their drug-testing and drug-free workplace policies should consider the following.
Duty to Accommodate
Many state laws require employers to consider the possibility of medical marijuana use as an accommodation the same way employers must consider other lawful medications and drugs. Unless an employer is subject to federal laws and requirements—such as those imposed by the Department of Transportation—an employer should treat marijuana use like any other medication, and not necessarily assume that using marijuana will impair the employee’s ability to do the essential duties of their job.
Because cannabis can be taken in various forms and doses, the level of impairment can fall across a broad spectrum. Rather than focus on cannabis, employers should focus on the possibility of impairment, and seek clarifying information from the employee’s health-care provider.
Additionally, in states where recreational and medical marijuana is legal, employers should proceed with caution when disciplining or terminating an employee for recreational use and/or a positive drug test, and consider whether an employee is using medical marijuana to treat a disability covered by the ADA, such as chronic anxiety or depression.
Exemptions
Many state laws include an exemption for federally funded or regulated employers that are subject to federal authority and/or governed by the Drug-Free Workplace Act of 1988, which requires employers to implement a drug-free workplace program with drug testing. States often include exemptions for safety-sensitive positions and functions, and some go as far as to require drug-testing for these positions.
Limits on Inquiries and Drug Testing
As with most drugs and medications, employers should limit inquiries to those that are specifically job-related. Employers shouldn’t ask questions about an employee’s off-duty substance use unless or until the employee’s behavior or actions at work provide a basis to do so.
Even though marijuana may be legal, employers usually retain a variety of rights to test for impairment. However, it’s important for an employer to determine whether and under what conditions state law permits drug testing—i.e., applicants, with conditional job offer, periodic, on reasonable suspicion, or post-workplace-accident—what the employer can or can’t do with its tests and the results, and whether it’s worth testing at all.
Employers must also comply with privacy laws applicable to drug testing. Above all, employers should be consistent in imposing testing; employers should be testing for impairment, not for a particular drug or substance.
Discipline and Termination
While an employee may be permitted to take medical marijuana off-duty and off-site, most states still permit an employer to discipline and/or terminate an employee for ingesting marijuana while working, or otherwise being intoxicated, impaired, or under the influence at the workplace.
However, many states don’t provide guidance on the amount of marijuana consumed to be considered intoxicated. And because there’s no federally recognized or authorized use for marijuana or cannabis products, the federal measurements and standards often used for other substances aren’t available for marijuana.
There are also some states with laws that address the unreliability of drug tests, which may mean that a positive drug test for marijuana doesn’t indicate intoxication. Employers may be required to look at objectively measured symptoms, such as slurred speech, dizziness, erratic behavior, or lack of balance to determine intoxication.
Moreover, even states that haven’t legalized marijuana use may permit the use of CBD. Employers should pre-determine the response if an employee tests positive for marijuana and claims that it is due to “legal” use of CBD.
Employers should also be aware that state marijuana laws often impact workers’ compensation, unemployment, and OSHA protections and obligations and may require employers to revise those policies and practices as well.
H/T: news.bloomberglaw.com
