Courts historically found a marijuana-positive drug test sufficient grounds to terminate an employee or refuse to hire someone; employers were safe to move forward without worrying about an individual being approved to use medical marijuana or if an employee was impaired at work. Problems arise when federal law conflicts with state law. Based on the U.S. Drug Enforcement Administration, marijuana is still considered a Schedule I illegal drug—even for medical purposes.
Many states and local jurisdictions have enacted anti-discrimination laws concerning marijuana use. Generally, such laws prohibit employers from taking adverse action against an employee who uses marijuana in conforming with local marijuana laws, if an employee does not consume it and work and is not impaired while on the job.
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urrently, there are 33 states and the District of Columbia with recently approved ballot measures legalizing marijuana for medical or recreational purposes. The state laws for medical use varies significantly and not all of them recognize marijuana-approved patients from their states. The states with medical marijuana laws and their guidelines for usage varies widely. Some states require patients to register, others don’t allow dispensaries, and not all of them recognize marijuana-approved patients from their states. In addition, some states allow employers to enact employment policies that prohibit the use of marijuana; these states do not force employers to make accommodations for employee use of marijuana.
In terms of recreational marijuana use, employers can have policies that prohibit the drug’s use and possession while employees are at work. In addition, employers can prohibit their employees from being impaired by marijuana at work. In these states, employers must comply with federal and state laws and provide employees with a safe and productive workplace. At the same time, employers must accommodate employees with disabilities that may require medical marijuana. Under the Americans with Disabilities Act, employers are required to make a “reasonable accommodation” to employees with disabilities—especially when workers have a doctor’s note that allows them to use it.
The differences in state laws require Human Resources to be aware of the legal issues involved and the changing legal landscape to ensure drug testing policies are legal and enforceable. The following steps can ensure that your organization maintains a safe working environment with regards to employee medical marijuana use while reducing the risk of costly legal claims:
- Review the company’s current drug testing policies to the extent that they test for marijuana, and determine whether state law requires exceptions to testing policies as a reasonable accommodation
- Train managers on how to handle reasonable accommodation requests by disabled employees who are certified, medical marijuana users
- Review policies regarding illegal drugs and disabilities to ensure that each complies with your state’s current medical marijuana laws
- Ensure that managers and human resources employees are properly trained on how to determine (and document) employee impairment when an employer suspects that drug use (legal or otherwise) is causing workplace issues
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