Although marijuana is still illegal at the federal level, as of today, at least 28 states have legalized the medical use of the drug, and eight states permit its recreational use. With more than half of the states permitting some form of pot use, employers and HR departments are understandably caught in a haze about how this shifting stance will impact their businesses and current workplace drug testing programs.
Thus, many questions about usage and policies are coming to light:
- Do we need new work place policies for medical marijuana?
- Can we maintain a zero-tolerance policy when my state permits medical and/or recreational marijuana use?
- What if we have safety-sensitive positions?
- Do we have to allow the use of medical marijuana in the workplace?
- How will this impact the company’s recruiting efforts and retaining a workforce?
This is just a sample of the types of questions that have cropped up. One important factor regardless of individual state law, is that the drug remains illegal under the federal law “Controlled Substances Act” (CSA), and employers have the right to test for it. Not only does federal law conflict with some states’ laws, but state laws also vary, making it more challenging for multistate employers.
Workplace Policies Upheld by the CSA
Even with the legalization of medical and/or recreational marijuana use in individual states, employers continue to have the right to insist that employees remain drug-free while at work, that they do not bring illegal (or nonprescribed) drugs or alcohol to work, or use substances while on the job.
Furthermore, a positive drug screen continues to be valid grounds for an adverse employment action if it is pursuant to an established policy. Employers that have “zero tolerance” workplace substance abuse policies can continue to rely on the fact that marijuana is illegal under the federal Controlled Substances Act, even if the individuals using marijuana may be released of criminal liability under certain states’ laws. “No state marijuana law mandates that employers accommodate employees’ marijuana use, even if it is off-the-job use that is compliant with state medical or recreational laws,” said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, more commonly known as the NORML Foundation, a marijuana advocacy organization.
Physician Prescription vs. Physician Recommendation
Marijuana under the federal Controlled Substances Act is considered a Schedule I drug, which means the federal government has identified it as having a high potential for abuse and no accepted medical purpose. Physicians are not allowed to prescribe Schedule I drugs under federal law; they can only provide “recommendations” for patients’ use. Although they are only recommendations, medical marijuana cardholders often believe their company’s zero-tolerance policy doesn’t apply to them because they have a “prescription” from a doctor.
In the state of Illinois, for example, the Illinois Compassionate Use of Medical Cannabis Pilot Program Act went into effect on January 1, 2014. The law allows physicians to recommend the therapeutic use of medical marijuana to patients who are under the doctors’ care for at least one of the 33 qualifying medical conditions. Qualifying patients who receive a written certification may register with the state Department of Public Health for legal status as a medical marijuana patient. The law prohibits discrimination by employers, providing that a person may not be discriminated against solely on his or her status as a registered qualifying patient or as a registered designated caregiver, unless failing to do so would put the employer in violation of federal law, or would cause it to lose a monetary or licensing-related benefit under federal law or rules.
The law does NOT:
- Prohibit an employer from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical cannabis.
- Prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug-free workplace, provided the policy is applied in a nondiscriminatory manner.
- Limit an employer’s ability to discipline a registered qualifying patient for violating a workplace drug policy.
- Limit an employer’s ability to discipline an employee for failing a drug test if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding.
An employer may consider a registered qualifying patient to be impaired when he or she manifests specific, articulable symptoms while working that decrease or lessen his or her performance of the duties or tasks of the employee’s job position. If an employer elects to discipline a qualifying patient, it must afford the employee a reasonable opportunity to contest the basis of the determination.
Cutting Through the Smoke
Employers and HR professionals should examine the company’s personnel policies to see how they address marijuana use and review them to determine if they are still right for your business and workforce.
Most critically, ask whether the company still needs or wants a zero-tolerance policy. The answer to that question may depend on your line of business, whether the position or type of work is safety-sensitive, and the employee demographic. Further, the federal Drug-Free Workplace Act (DFWA) obligates federal contractors and grantees to maintain a workplace that is free of “illegal drugs” as defined by the CSA.
Keeping in mind, some employers may be mandated under state and federal law to maintain a drug-free workplace and may be permitted, under the Drug-Free Workplace Act to discipline employees who use medical marijuana in the workplace. Accordingly, some employers may choose to develop policies that account for employees’ use of medical marijuana, while some may choose to prohibit its use altogether.
Implementing Clear Screening and Employment Policies
Experts agree that whether employers decide to test for marijuana pre-employment, having a clear, well-thought-out drug testing policy addressing marijuana is a good idea. As the laws continue to change across the country, it is vital for employers to have a comprehensive, legally acceptable drug policy that clearly addresses decriminalized marijuana use.
Employers should also carefully watch state laws, and refrain from taking adverse action or imposing disciplinary consequences against a candidate without consulting legal counsel. Ten of the 28 states with compassionate care statutes that allow marijuana to be used for medical reasons require employers to consider accommodating the user. In these states, it is against the law to disqualify someone from a job just because that person tested positive for marijuana.
Regardless of the stance, it’s imperative the company have a policy in place on how to screen candidates, and whether accommodations for the user can be made is vital to mitigate risk not only from employment lawsuits but also from workplace accidents and injuries.
Those who employ a zero-tolerance policy should review their drug-testing policy to ensure that it:
a) Sets clear expectations of employees;
b) Provides justification for the need for drug-testing;
c) Specifically allows for adverse action (including termination or refusal to hire) because of a positive test.
Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but to applicants as well.
Employers will need to decide whether their company will enforce a zero-tolerance drug policy and discipline employees who fail drug tests because of marijuana use, even if they are medical marijuana patients. Employers should become familiar with the law in their state(s) to determine whether they can legally discipline an employee for off-hours and off-site use or influence, when it is pursuant to a valid prescription (in medical states) or for off-hours and off-site recreational use (in recreational marijuana states).
Medical Marijuana Handbook Sample Policies:
[Organization] will not discriminate against an applicant or employee based on the person’s status as a registered medical marijuana patient or based on a registered patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana during the hours of employment or while on [Organization]’s premises.
All employees, including those who are registered medical marijuana patients, are prohibited from ingesting marijuana in the workplace and from working while under the influence of marijuana. Any employee who violates this policy is subject to discipline, up to and including, termination of employment.
[Organization] will not accept a medical marijuana, marijuana extract, or recreational marijuana explanation for a positive drug test even where permitted by state law because such use is in violation of Schedule 1 of the federal Controlled Substances Act.
Let’s be blunt, marijuana isn’t just for smoking anymore….
Adding a new challenge in the workplace, are the various forms in which marijuana can be found. Edible marijuana is odorless and may be more potent than when it is smoked. Edible marijuana can come in many forms: baked goods, candy, oil emulsions, tablets, and liquids for vaping.
Detecting the impairment of edibles has become more difficult; making it more difficult to sniff out the smokers based on their smell. The only way to detect the use of edible forms is simply by observing the employee’s behavior. Adding to the complexity, edible marijuana takes longer to start working and the effects can last much longer than smoking the drug. In fact, the effects of edible marijuana can last up to 12 hours, depending on the dose.
If an employee brings edible marijuana to work with a doctor’s note, how the employer decides to act is their decision; but it must be stated in their drug-free workplace policy. If employers don’t have a drug-free workplace policy, they need to establish one. Courts have ruled that medical marijuana users can be fired even if they are using the drug by prescription in accordance with state laws.
If you have any questions on the above, or if you are interested in learning more about how Sikich can assist with reviewing your current policy, please contact a Sikich HR Consultant today.