The recent decision by the federal Department of Justice (DOJ) to reinforce the classification of marijuana as an illegal drug has left many employers confused. What approach should a business take in states where the drug is legal for medical and recreational purposes?
Federal policy under the Obama administration directed the DOJ to focus only on serious marijuana crimes, which essentially allowed states to determine their own marijuana laws. However, early in 2018, Attorney General Jeff Sessions reversed this policy.
Describing the move as a return to the “rule of law,” Sessions issued a memo encouraging prosecutors to enforce federal laws more aggressively. Under this new guidance, federal prosecutors can take action against marijuana producers and users even in states where the drug is legal.
Where does this ongoing struggle between state lawmakers and the federal government leave employers? Let’s look past the haze of conflicting laws and examine the key issues regarding marijuana and the workplace.
Complying with State and Federal Marijuana Laws
According to the National Conference of State Legislators (NCSL), 29 states have legalized the use of medical marijuana, while nine states and the District of Columbia currently allow recreational use. Though it’s not yet clear whether the federal government will continue to respect the decisions of these states, it’s important to understand what options you have as an employer with respect to marijuana possession and use in the workplace.
Your right as an employer to enforce drug-free workplace policies and respond to an employee who violates company policy is firmly supported by the courts, even in states where marijuana is legal. However, it’s in your best interest to identify whether your state law protects employees who use marijuana for medical purposes or during their own free time.
Marijuana regulations vary from state to state and change frequently, so you’ll need to stay on top of ongoing developments in the locations where you operate.
Strengthening Your Drug-Free Workplace Policy
Establishing a clear and consistent drug-free workplace policy can keep you legally compliant, protect your business and ensure the safety of your employees. Your policy should state in plain language that the use and possession of marijuana in the workplace, as well as impairment during work hours, is forbidden. It should also outline disciplinary actions and grounds for termination.
You can implement a zero-tolerance policy, which includes requesting a drug test based on a workplace accident or on reasonable suspicion -- and reprimanding or firing an employee if the result is positive. In fact, if you’re a federal contractor, you’re required to adopt a zero-tolerance policy under the Drug Free Workplace Act. Employers with workers in safety-sensitive industries should also enforce zero-tolerance policies.
Accommodating Medical Marijuana
On the matter of medical marijuana, courts have generally ruled that employers are not obligated to accommodate it in the workplace. However, as marijuana laws continue to evolve, some courts have ruled that an employee's use of medical marijuana to treat a qualified disability or illness can be considered a “reasonable accommodation.”
If you’re faced with this situation in a state that provides protection for medical marijuana users, the best course of action is to engage your employee in the interactive process. This will allow you to determine what kind of accommodation is needed based on your employee’s explanation of his or her treatment requirements.
According to Shanna Wall, Employment Law Attorney at ComplyRight, this accommodation should not place undue hardship on the employer or threaten the safety and health of other workers.
“It’s important that the employer makes a genuine effort to work with the employee to find a solution that suits both parties. Ideally, this solution would allow the employer to maintain a drug-free workplace while facilitating the performance of the employee’s duties,” says Wall.
Depending on the employee’s roles and responsibilities, Wall suggests that a reasonable accommodation could take the form of temporary reassignment while undergoing treatment. She adds that, in certain cases, a change in shift and taking time-off are options worth considering.
How Should Employers Handle Drug Testing Applicants?
Employers who conduct pre-employment drug screenings should check state laws. If your state allows disciplinary action for positive tests, it’s important to include in your offer letter that employment is conditional on passing the drug test. You also should put your substance testing policies in writing, provide the candidate a written notice and have him or her sign a consent form. This will release your business from any legal liability if you decide not to hire the candidate based on the test outcome.
And remember: You must be consistent when enforcing your drug screening policy. If you screen one candidate, you must do so for all candidates or you could be accused of discrimination.
Protect Your Business with a Clear Policy
As rapidly changing state laws on marijuana continue to conflict with stricter federal law, employers are forced to review their drug policies and employee handbooks. Identifying all the applicable state laws and using the appropriate language can be a tedious and time-consuming task. But it doesn’t have to be!
To easily update or create a new drug policy as part of a comprehensive employee handbook, consider ComplyRight Essential Workplace Policies or the Gradience Employee Handbook Software. These products will allow you to clearly address marijuana use at the workplace in compliance with federal and state laws in all 50 states.