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Marijuana and the Drug-Free Workplace

Posted by Sarah R. Schmitz on February 16, 2016 at 12:00 AM

Marijuana is one of the hottest topics being discussed today. Currently, 24 states and the District of Columbia have legalized medical marijuana in some form and four states and the District of Columbia have legalized the use of recreational marijuana. However, due to these changes in legislation in many states, employers are left feeling hazy. Often, employers are unclear about whether they can still enforce a drug-free environment. That answer depends on where you live.

Under federal law, marijuana remains illegal and is classified by the Controlled Substances Act as a Schedule 1 drug. For that reason, employees cannot find federal protection for medical marijuana use under the Americans with Disabilities Act, which has an exception for “illegal drug use.”

Each state law is very unique. A majority of states do not address medical marijuana in the workplace and courts have been reluctant to provide these employees any protection against termination. In at least nine states (Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York and Rhode Island), the medical marijuana statutes specifically provide job protection to employees who use medical marijuana. The specific state protections range from classifying medical marijuana as a “disability” and triggering the interactive process and possible reasonable accommodations to allowing an employer to enforce a zero-tolerance policy and discipline a medical marijuana holder for violating that company policy. 

The most recent case attempt to find protection for employees in the majority of states that do not provide specific protections in the statute was the case of Coats v. Dish Network, LLC. The Colorado Supreme Court held that the Lawful Use Statute, a statute intended to protect workers who engage in legal activities during non-work hours that are not condoned by their employers, did not protect medical marijuana users. Marijuana remains illegal under federal law, without any exception for medicinal purposes, or any express allowance for a state to legalize it for any such purpose statute, and thus was not a “lawful” activity.

If you receive notice of a failed drug screen and your employee presents a medical marijuana card, do you know what to do? To clear the haze, work closely with the risk management, insurance and legal teams to ensure that policies and procedures comply with your specific state law and your options.

Maintaining clear policies and procedures is the most proactive way to address this emerging issue. Examine drug testing policies, any drug-free workplace rules, whether there is federal oversight on any of your operations or you have safety sensitive positions. 

When you decide on the plan that is right for your public entity, ensure consistency by publicizing the adoption of the policies in your personnel manual or employee handbook.  

For more information, the PRIMA Cybrary may include sample policies in which risk managers can refer to as a resource.