Although marijuana is legal for medicinal and recreational purposes in several states, the drug remains illegal under federal law. Only a few states that have legalized marijuana for medicinal purposes require employers to provide reasonable accommodation to employees who may use the drug for medicinal purposes. As of the date of this response, those states Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada New York.
The Occupational Safety and Health Administration (OSHA) supports consistent testing and regulation of the drug in the workplace, and workers compensation underwriters take the same position. Businesses that have federal contracts must follow the Drug-Free Workplace Act and can lose eligibility for federal contracts unless they have strong zero-tolerance drug policies. Some states have similar rules for state contractors.
Businesses have a duty to protect employees and customers by providing a safe and healthy work environment. This responsibility has meant that employers could develop and administer a zero-tolerance policy against substance abuse in the workplace with the right to test for the presence of those substances. For multi-state employers, there may be confusion today over how to apply the policy consistently across the organization with operations in states that have different laws about marijuana.
Unlike alcohol, where the smell might trigger reasonable suspicion, this might not be the case for cannabis use. Depending upon how it is consumed, new technology delivering edible products loaded with THC, marijuana’s psychoactive component, and vape devices delivering concentrated THC, has eliminated the skunky smell once associated with the drug. Further, the marijuana industry suggests that drug testing is futile because the drug tests could yield positive results even if the employee hasn’t used the drug recently. The good news for employers is that there are new oral swab tests on the market that can detect actual impairment through saliva with a shorter detection window that contrasts with urine tests that don’t necessarily correspond to current impairment levels.
For states without marijuana laws, employers can keep the current zero-tolerance policy and rely on the federal government’s strong stance that would support that approach. Federal contractors subject to the Drug-Free Workplace Act can continue to follow the requirements under the law to maintain eligibility for those contracts.
In states where medical marijuana is allowed, however, employers may have a duty to accommodate its usage, as with accommodations for other prescription drugs. The accommodations might include moving the employee to a less safety-sensitive position, changes in work hours, or other accommodations that would be considered reasonable and not cause undue hardship to the business. Employers should consult with legal counsel if these situations arise.
While the situation is still hazy, for employers in states with legalized recreational marijuana, most experts believe that it is allowable to continue enforcing policies restricting marijuana use on the job.
Employers are advised to take the following steps:
- Define what is considered substance abuse and what types of substances are covered under the policy.
- Outline the process the company will take for determining reasonable suspicion for testing, the procedures for allowing the employee to remain at work or be sent home, and the penalties for infractions of the policy.
- Affirm that employees who disclose medical issues or request accommodations relating to a disability will be protected from discrimination and retaliation.
- If testing is part of the policy, review options for the oral swab technology that could yield better results for recent marijuana usage.
- Review the policy with safety, risk management legal counsel.
- Communicate the policy to all employees.
presented is for informational purposes only, does not constitute legal advice or opinion, and should not be relied upon as such. Because laws vary from state-to-state, you should also check your state and local regulations and your attorney with respect to any particular issue or problem. This post is provided by Alera Veterinary, a Silver Business Alliance Partner to the VHMA and not represent the opinion of VHMA. VHMA, Alera Veterinary (a division of Alera Group), GCG Financial, LLC and AleraHR Workplace Pro do not accept liability due to errors or omissions and any action or failure to act based on the information or advice provided is at your sole discretion.