20 states and the District of Columbia have decriminalized possession of marijuana for medical use, and for recreational use as well in Washington and Colorado. However, federal law still lists marijuana as a Schedule I drug, with no legal use. This uncertain regulatory scheme places employers in the delicate position of attempting to comply with divergent laws while maintaining order and safety in the workplace.
While it is beyond the scope of this article to lay out a comprehensive guide for employers to follow, here are some steps employers should take when regulating marijuana use for the workplace.
- Review your state’s laws regarding discrimination against marijuana users.
If your goal is to prohibit your employees from engaging in any marijuana use, make sure your policies are consistent with state antidiscrimination statutes.
While courts across the country have thus far upheld employers’ rights to maintain policies against marijuana use, three states, Connecticut, Maine and Rhode Island, have laws prohibiting employers from discriminating against employees merely due to their status as medical marijuana patients. Arizona and Delaware go even further, barring employers from discriminating against registered and qualifying patients who test positive for marijuana, with the exception for employees who are impaired at the workplace.
Some states explicitly exempt employers from accommodating marijuana use in or around the workplace. For example, Colorado’s law states that it “is not intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or affect the ability of employers to have policies restricting the use of marijuana by employees.” Similarly, the regulations implementing Massachusetts’ medical marijuana law make clear that employers are not required to offer “accommodation of any on-site medical use of marijuana in any place of employment.”
The courts have also supported employers’ efforts to maintain a drug-free workplace. In Colorado, an appellate court has held that Colorado’s “lawful activities” statute did not protect an employee from termination after testing positive for marijuana, despite his status as a licensed medical marijuana patient. The court reasoned that because marijuana is still illegal under federal law, its use is not a “lawful activity” receiving protection.
U.S. Court of Appeals for the Sixth Circuit has also held that “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.”
- Continue to comply with federal regulations.
Despite an increasingly liberal attitude towards marijuana by the states, federal regulations still prohibit the use of marijuana. For several classes of employees, federal regulations require regular testing for marijuana use. For example, the Department of Transportation has issued guidance for its Drug and Alcohol Testing Regulations, stating that “it remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s regulations to use marijuana.” Safety‐sensitive transportation employees include pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, and pipeline emergency response personnel, among others.
Additionally, the Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for an employee with a disability, even if that person is a registered medical marijuana patient. The Court of Appeals for the Ninth Circuit has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.” Employers do not have to accommodate medical marijuana under the ADA because the ADA defines illegal drug use based on federal law, and so does not protect medical marijuana use.
- Review your drug use and drug testing policies.
Finally, review your drug policies to ensure that they clearly explain your expectations regarding impairment, marijuana use outside of company time, and drug testing. Of course, even the most well-written policy has little effect if it is not uniformly enforced, so be sure you are prepared to consistently follow your stated procedures.
As part of your review, be sure to articulate whether you wish to ban all employee drug use or merely impairment. Employers should be aware that the presence of THC (the active ingredient in marijuana) in an employee’s system may not indicate present impairment. While an employee may only feel the effects of marijuana for a matter of hours, THC can be detected for several days or even weeks if the employee is a frequent user. Different types of drug testing systems detect different levels of THC, and results can vary depending on whether a urine or blood test is used. Make sure the purposes of your policies are consistent with your testing regime, and consistent with state law.
As states continue to pass laws and regulations concerning medical and recreational marijuana use, employers will continue to be confronted with the need to comply with increasingly divergent state and federal law. Employers should closely monitor developments in their states and be prepared to periodically remind employees of their expectations and requirements.