By: Amy Lessa and Nicole Stenoish, Attorneys At Law, Fisher Phillips
Marijuana legalization is on the rise and quickly expanding to all corners of the United States. Nearly 2/3 of the states have legalized marijuana for either recreational or medicinal use. Currently, 11 states and the District of Columbia allow recreational marijuana, and an additional 22 states allow medical marijuana. These numbers are expected to grow over the next few years as the societal and political perspectives on cannabis continue to shift in favor of legalization.
Despite this shift, marijuana still remains an illegal Schedule I drug under the federal Controlled Substances Act – in direct contrast with legalized marijuana at the state level. Although federal law is superior to state law, businesses must comply with both – even if federal and state laws conflict with one another. The chronic dispute between state and federal marijuana laws has left many employers confused about how to handle marijuana use in the workplace. We’re here to clear the smoke.
Legalized Marijuana – What Can-a-Business Do?
Marijuana laws are constantly evolving and continue to be challenged in courts across the country. This makes it difficult to keep up with the requirements and limitations of legalized marijuana under both state and federal law.
Many employers are now questioning whether their workplace marijuana policies and practices should be revised. Before deciding what policy is best for your company, it is important to understand the law in your state. A company’s policies should also reflect the specific needs and challenges of the business and workforce. For example, many craft brewery owners report they can no longer test for cannabis because most of their applicants cannot pass the drug test at the pre-employment stage. That could leave a brewery without a workforce. As a result, Company’s should decide whether it makes sense to continue testing for cannabis in their pre-employment drug screens. Other issues relevant to this determination are whether your employees operate heavy machinery or work in safety sensitive positions, and are you having difficulty recruiting qualified candidates for your company?
There are several key issues the keep in mind when determining the best marijuana policies and practices for your workforce:
- Maintain a Drug-Free Workplace
Employers are entitled to maintain specific policies related to marijuana use in the workplace, including drug-free workplace and zero-tolerance policies. Because marijuana remains illegal under federal law, employers can strictly prohibit marijuana at work. Employees can be disciplined, and even terminated, for coming to work under the influence, possessing marijuana on company premises, or using marijuana while at work – even in states where marijuana is legal. In most states, companies also have the right to test employees for drug use, and can discipline or terminate employees for violation of the drug-free workplace policy. Before implementing a zero-tolerance policy, make sure your state does not specifically protect medical marijuana users or prevent employers from disciplining workers for legal off-duty conduct. Otherwise, drug-free workplace policies are essential to help protect your business and manage employees in the wake of legalized marijuana.
- Review Drug Testing Policies
Employers can typically require employee drug testing throughout employment. The different types of testing including pre-employment drug testing, random drug testing, reasonable suspicion drug testing, and post-accident drug testing depending on state laws. Employers with mandatory drug testing policies need to ensure they follow specific state laws restricting disciplinary action based on positive test results. Additionally, employers are prohibited from administering drug tests as a form of discipline or for retaliatory purposes. There are several other issues to consider when reviewing your company’s drug testing policies.
First, the science used to test for marijuana has been slow to catch up with increased legalization. While there are testing methodologies currently in development, there is no test to determine whether an individual is presently under the influence of marijuana. Marijuana can remain in one’s system for weeks, and an employee could test positive for marijuana even if it was consumed outside of work and had no impact on the employee’s job performance. This creates potential issues for employers when drug testing employees who have medical marijuana prescriptions, or in states where recreational marijuana is allowed.
Also, many states have laws that provide protections for engaging in legal off-duty conduct. These laws prohibit employers from considering an employee’s lawful conduct outside of work for purposes of making employment decisions. For example, in states where recreational marijuana is legal, the consumption of marijuana outside of work hours could be considered lawful off-duty conduct, and an employer could be prohibited from using an employee’s positive drug test for purposes of making an adverse employment decision. Although this issue remains largely untested by the courts, and employers are currently allowed to make certain employment decisions based on drug test results, we anticipate that employee drug test results will be challenged by lawful off-duty conduct laws in the years to come.
Furthermore, employers in a limited number of states may need to accommodate medical marijuana usage by employees. In those circumstances, employers are prohibited from making employment decisions based on an employee’s positive test result, depending on the nature of the employee’s particular position and job duties.
Pre-employment Drug Testing
Companies are generally allowed to require drug testing as a condition of employment, and can deny employment based on positive test results. However, some states limit pre-employment drug testing for medical marijuana users, and other states have anti-discrimination laws for pre-employment drug test results.
Interestingly, an increasing number of companies, including those in the craft beverage industries, are eliminating pre-employment drug testing because of difficulties it can pose in finding employees who can pass the test. As a result, some employers are softening their drug testing policies or removing marijuana from the list of drugs tested for. However, softening the stance on pre-employment marijuana drug testing may not be a viable option for companies with employees working in safety-sensitive positions, or companies with insurance policies or government contracts that specifically require employee drug testing.
Drug Testing During Employment
Employers may also consider random drug testing, reasonable suspicion drug testing, and post-accident drug testing of employees. Random drug testing is only allowed in some states and often limited to employees in specific, narrowly defined classifications – such as employees working in safety sensitive positions. Almost all states allow employers to drug test employees if there is reasonable suspicion that an employee is impaired on the job. Reasonable suspicion must be more than a hunch, and employers should be able to articulate the employee’s specific conduct or behaviors that led the employer to suspect impairment on the job. Employers can also conduct post-accident drug testing following a workplace injury or accident, but only for employees whose impairment or drug use could have contributed to the incident.
Overall, companies should review state-specific laws and consider the specific needs and challenges of their workforce when reviewing or revising drug testing policies and practices. And you should always put drug testing policies in writing, distribute to your employees, and enforce the policies uniformly.
- Accommodation of Medical Marijuana Varies by State
Generally, employers do not need to accommodate medical marijuana in the workplace. However, this could soon change. Courts in several states have recently indicated that accommodating an employee’s medical marijuana use may be appropriate in certain situations. Employers already must engage their employees in the interactive process to explore reasonable accommodations for known disabilities of an employee. In some circumstances, this could mean accommodating medical marijuana use if it is determined to be a reasonable accommodation that does not create an undue hardship on the Company. Before doing so, however, employers should consult with qualified legal counsel.
Employers also need to be careful when disciplining medical marijuana users. Several states have specific laws protecting medical cannabis patients from employment discrimination. Medical marijuana patients in Massachusetts, Rhode Island, Connecticut and Pennsylvania, for example, have already won lawsuits against companies that rescinded job offers or fired workers because of positive tests for cannabis. Medical marijuana laws are continuing to evolve, and protections for medical marijuana users are likely to increase.
Conclusion – Best Practices
An increasing number of states have legalized medical or recreational marijuana, yet the federal government continues to classify marijuana as an illegal drug. This conflict between state and federal law is not likely to be resolved anytime soon. In the meantime, employers should follow several best practices to manage employees where marijuana has been legalized.
Companies should carefully review these issues and create policies that balance legal compliance with the specific needs of the business. Until the conflict between state and federal law is resolved, this includes:
- Stay up to date with evolving marijuana laws.
- Determine specific requirements for drug testing and medical marijuana in each state in which your company has employees.
- Develop state-compliant workplace drug policies that are appropriate for your business.
- Confirm your drug testing policies in writing, distribute to employees, and apply the policies uniformly.
- Consider eliminating strict drug testing practices in favor of reasonable suspicion drug testing.
- Determine if you will test applicants for marijuana use or not.
- Contact legal counsel if any specific concerns or incidents arise within your workforce.
If your company follows these simple guidelines for managing employees in the wake of legalized marijuana, you will be in a good position to adapt while protecting your business as marijuana legalization continues to evolve in the coming years.
For questions on specific state laws, consult with an attorney.
Amy Lessa and Nicole Stenoish are attorneys in the San Diego office of Fisher Phillips. Amy and Nicole counsel and defend employers, including breweries in employment law matters. They can be reached at email@example.com and firstname.lastname@example.org