A Guide To Marijuana, Employment In Today’s Changing World

Editor’s Note: Because the laws governing the possession and use of marijuana for medical and recreational purposes are changing, the editors thought a brief guide might be of use to readers.

Danielle S. Urban is a partner in the Denver office of Fisher & Phillips LLP, representing employers nationally in labor, employment, civil rights, employee benefits and immigration matters. 

Twenty-three states and the District of Columbia permit medical marijuana use in some form.

Colorado and Washington also allow recreational use of marijuana, while Alaska and Oregon will legalize recreational marijuana use in 2015. District of Columbia voters approved a ballot initiative legalizing recreational marijuana that will be subject to Congressional review.

How does this affect me as an employer?

Marijuana remains a Schedule I controlled substance under federal law.  If you are an employer subject to federal drug-free workplace laws or federal safety regulations such as the federal Department of Transportation regulations you must maintain a drug-free workplace and will need to continue to comply with federal drug-testing and reporting protocols.  Unless you are an employer in a state that explicitly protects medical marijuana users from adverse employment action, such as Arizona or Minnesota, you are free to maintain and enforce zero-tolerance drug and alcohol policies in the workplace, and this includes marijuana used for medical purposes.  

Where should I start?

Consider workplace policies drug and alcohol policies regarding medical and recreational marijuana prior to being faced with a positive employee test.  If you do not have drug and alcohol policies, now is the time to consider putting them in place.  If your policies do not specifically address marijuana, update your policies to expressly address how marijuana, including medical marijuana use, will be addressed.  No employer is required to accommodate an employee’s marijuana use at work, nor is any employer required to accommodate employees who may be impaired on the job.  In fact, employers who permit employees to work impaired may be subject to legal liability.  If the employer maintains “zero-tolerance” policies, the employer should take steps to remind all employees of this policy and explicitly state that this includes medical marijuana use.  Spell out the consequences for a positive test result.  With few exceptions, most employers are not required to accommodate medical or recreational use of marijuana, and are not required to continue to employ employees who test positive for marijuana, even if the employee shows no signs of impairment at work.         
 
How do I deal with positive tests where the employee shows me a prescription for medical marijuana?

In states that permit medical marijuana use, physicians may recommend that a patient could benefit from medical use of marijuana.  This is not a prescription, as physicians are prohibited by law from “prescribing” marijuana.  For employers with “zero tolerance” policies (outside of Minnesota and Arizona), a recommendation for medical marijuana does not excuse a positive test, and employers are free to take disciplinary action consistent with its policies.  For applicants, if the positive test violates employer’s drug policy, employer can refuse to hire applicant based on positive test.

What if a current employee tells me he or she is using medical marijuana as part of treatment for a disability?

Because marijuana remains a Schedule I controlled substance under federal law, there is no requirement that an employer accommodate marijuana as a form of treatment under the ADA.  Prudent employers will work with the employee to consider other accommodations, however, and employers should never take adverse action against an employee simply because the employee reports that he or she uses medical marijuana.  Instead, the employer should remind the employee of its drug and alcohol policies, and take action only against employees who violate those policies, such as an employee who tests positive for a prohibited substance.

What is an employer’s potential legal liability should an impaired employee injure someone else at work? 

The employer could be liable for negligent hire, retention or supervision of the impaired employee and may have vicarious liability for the employee who injures someone else while impaired on the job.  Keep in mind that employers also have a duty under OSHA’s general duty clause to maintain a safe workplace free from known hazards.  Permitting an impaired employee to work could violate this duty.  Regardless of whether an employer permits medical marijuana use by employees, employers should not tolerate employees working while impaired from any substance, including legally-prescribed drugs such as painkillers.

What are Best Practices for employers to consider implementing now?

Every employer should take this opportunity to review and update drug and alcohol policies now.  If you do not have policies in place, consider putting them in place.  Publicize your policies so that every employee is aware of the requirements and the consequences for violating workplace drug and alcohol policies.  Make sure your policies are compliant with state and federal requirements, which could mean that the same policy may not work in every state.  Make sure that your managers are properly trained to understand the policies and to consistently administer those policies for every employee. Employers risk disparate treatment claims when employees are given different treatment for the same policy violations.

Finally, consider testing protocols and whether a zero tolerance policy fits your workplace.  Will you do pre-employment testing?  Random testing? Post-accident testing?  Reasonable suspicion testing?  Make sure that your testing procedures are compliant with state law, as some states limit how and when testing can be done.  

Any potential pitfalls of which employers should be aware?

Don’t take action against an employee simply because he or she may be a medical marijuana card holder.  Instead, take action only on the basis of a positive test result, if the test result violates your drug and alcohol policies.  Don’t take adverse action against an individual requesting an accommodation for a disability (by using marijuana) without considering alternatives.  Don’t treat employees differently who test positive for marijuana use – be consistent with all employees to avoid claims of discrimination.  This means that you cannot give better treatment to the employee you like.  Don’t permit tampering with drug tests or permit refusal to take drug tests where required.  Finally, don’t fail to document all employee issues related to your drug and alcohol policies, maintain confidentiality for each employee and don’t ignore warning signs of impairment at work.

Danielle S. Urban is a partner in the Denver office of Fisher & Phillips LLP, representing employers nationally in labor, employment, civil rights, employee benefits and immigration matters. Contact her at durban@laborlawyers.com or 303.218.3650