Perspectives on marijuana are shifting, and for multi-state employers, different state marijuana laws can make it challenging to enforce a company’s drug policy across an entire organization.
Employment protections for marijuana usage
The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace due to disabilities or illness. The ADA specifically states that someone with a disability shall not include any employee or job candidate currently using illegal drugs. However, someone who is in rehabilitation or is a former drug user may have ADA protections.
Some states have passed laws with anti-discrimination provisions to protect employees who are valid medical marijuana cardholders. Those states include:
- New York
Nevada law, which takes effect Jan. 1, 2020, restricts the use of pre-employment drug testing for marijuana. Nevada is the first state to ban pre-employment drug testing for the substance. New York City also bans pre-employment drug testing.
Federal marijuana laws
Despite these state laws, all marijuana use is illegal under federal law. Marijuana is listed as a Schedule I drug under the Federal Controlled Substances Act.
Seek outside legal counsel for guidance on federal and state marijuana laws. Developing employee substance abuse policies can be challenging as new marijuana state laws continue to emerge.
What are the best practices for addressing conflicting marijuana laws?
Best practices for dealing with conflicting state marijuana laws in the workplace include:
- Knowing your state laws as they relate to medical and recreational use of marijuana when it comes to:
- Drug testing (whether pre-employment, for reasonable suspicion or random)
- Drug-free workplace policies
- Engaging in the interactive process in compliance with the ADA
- Consulting your company’s attorney before implementing comprehensive substance-abuse policies, before performing any drug test or adopting a drug test policy to ensure your company is in compliance with applicable state laws.
- Confirming whether positive drug tests are connected to medicinal use before making employment decisions if your company operates in states that provide protections for valid medical marijuana users.
Do you need to update your company’s drug use policies? If so, how?
As an HR professional, your focus is not on the legalization of marijuana but on maintaining workplace safety. As you review your company’s policies for possible updates:
- Think of recreational marijuana as recreational alcohol, with the additional understanding that marijuana is still illegal under federal law, unlike alcohol.
- Review job descriptions for safety-sensitive positions. If permissible in your state, prohibit the use of marijuana-based on the employee’s position or responsibilities. For instance, marijuana use might be prohibited for safety-sensitive jobs such as drivers or first responders or employment with the federal government.
- Recommend a drug-free policy in the workplace. Employees should never be impaired by any drug or alcohol when performing job duties.
- Understand that testing for marijuana use is not like testing for alcohol. Marijuana can remain in an employee’s system for weeks after a vacation. A positive test result may not be the only deciding factor used to determine impairment from marijuana as the cause of a workplace accident.
- Work with your legal counsel as you review and possibly revise screening procedures and drug abuse policies.
What should you do if an employee’s cannabis use conflicts with company policies?
If your company operates in states with laws legalizing or decriminalizing, review and update your company’s drug use policies and drug screening practices. Outside legal counsel can advise on what is needed to keep your drug policies and testing in compliance.
Consider adding to your policy the consequences for employees who display the behaviors of intoxication. Educate employees on your expectations and train front-line supervisors and managers on how to spot signs of impairment, such as:
- Unexplained absences at or from work
- Increased accidents both at home and at work
- Missed appointments and meetings
- Poor judgment and bad decision-making
- Confusion or inability to recall details and instructions
Avoid discussion about your suspicions of marijuana use and focus on the employee’s performance. By focusing on behavior, you can speak to the employee about violating workplace policies.
Seek legal counsel when dealing with changing marijuana laws
As medical and recreational legalization spreads, it will become increasingly important for employers to clarify their policies. It can be especially difficult for smaller companies to dedicate resources to stay updated on changing marijuana laws.
While it may be unlawful in some states to discriminate against workers simply because they have a medical marijuana card, employers can still require sobriety at work and treat marijuana as they would alcohol or prescription drugs.
Make your first step seeking outside legal counsel to guide you in reviewing company policies and practices to stay in compliance with changing state marijuana laws.
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