Although under federal law marijuana still remains illegal as a Schedule I controlled substance, 34 states plus the District of Columbia have legalized the use of marijuana for medical reasons. Of those states, 11 states and the District of Columbia have legalized the recreational use of marijuana. These conflicting state and federal laws are troubling for employers who seek a concrete answer on how to deal with their employees’ use of marijuana. Unfortunately for employers, a simple answer does not exist. As state laws are continuously evolving and jurisdictions are passing stronger protections for individuals who use marijuana, employers must assess their policies to ensure compliance with both state and federal laws.
So what should employers do about their policies to comply with the new laws legalizing the use of marijuana?
Evaluate “Zero-Tolerance” Programs
Employers must evaluate their zero-tolerance drug testing policies. Employers should first determine whether their workplace is regulated by The Drug Free Workplace Act (the “Act”). Employers who are recipients of a federal grant or contracts with a federal agency are required to adopt a zero tolerance policy in their workplace and certify to the federal government that their workplaces are drug free in accordance with the Act. Employers are not required to conduct mandatory drug tests under the Act. Additionally, the Act requires employers to:
Create and publish a written policy on the employer’s zero-tolerance policy and ensure that employees read and consent to the policy as a condition of employment;
Institute awareness programs to teach employees about the company’s drug workplace policies, the dangers of drug abuse, any available counseling and rehabilitation programs, and the penalties that may be imposed on employees for drug abuse violations;
Require employees to notify the employer within 5 days of any conviction for a drug offense in the workplace; and
Continuously make a good faith effort to maintain a drug-free workplace.
If an employer is not required to comply with the Act, employers may still institute a zero-tolerance policy for employees in “safety-sensitive” positions. A “safety-sensitive” position is generally one in which an employee is responsible for the safety of himself or others, and includes responsibilities such as driving or the use of machinery, among many others. If an employee’s job responsibilities require a commercial driver’s license (“CDL”), then the employer is mandated under the Omnibus Transportation Employee Safety Act of 1991 to drug test those employees whose duties require a CDL.
Revise Policies to Comply With State Laws
Employers who are not required to comply with The Drug Free Workplace Act or who do not employ employees in safety sensitive positions must revise their policies to comply with varying state laws. Although some states have legalized medical and recreational marijuana, no law obligates employers to tolerate the use of marijuana in the workplace or being high on the job.
Employers must modify their zero-tolerance drug testing policies based on some state laws that require accommodations for use of marijuana off the job. In the 14 states where medical marijuana is legal – including New York – state laws expressly prohibit employers from discriminating against medical marijuana uses. Maine and Nevada – which have both legalized medical and recreational marijuana –adopted laws prohibiting employers from taking adverse actions against most workers’ employment based on their use of marijuana when the employees are off the job.
Most state laws generally permit employers to drug test employees for marijuana if the employee is working in a safety sensitive position, if the employee exhibits signs of impairment on the job, or after an accident at work that requires an investigation by the Occupational Safety and Health Administration. Employers should consult an expert to determine that their policies comply with all applicable state laws.
Determine Whether Pre-Employment Testing Is Permitted Under State and Local Laws
State laws generally regulate when employers may test job candidates for marijuana. Nevada and New York City have passed laws determining when employers are permitted to conduct pre-employment marijuana testing. Other states have enacted laws prohibiting employers from rejecting job candidates based solely on a positive result after testing for marijuana if the individuals are eligible for medical marijuana.
Even in states where pre-employment testing is legal, employers are weighing the benefits of drug testing against the consequences of losing out on talented candidates who can’t pass a drug test. Many businesses have stopped pre-employment drug testing because they believe it hurts their ability to hire well-qualified individuals and compete in the labor market. If employers seek to implement pre-employment testing, they should confer with their advisors prior to implementing pre-employment marijuana tests.
Understand What the Results of a Marijuana Drug Test Mean
The vast complications employers face when drug testing for marijuana stem from the fact that testing for marijuana impairment does not render the same type of results when testing for alcohol impairment. Marijuana is unlike alcohol. States set a legal limit to determine whether a person is impaired by alcohol; however, there is no specified amount of tetrahydrocannabinol (the psychoactive component in marijuana more commonly known as THC) known to determine whether a person is impaired by marijuana, since THC metabolizes into a compound that can remain in an individual’s body for weeks after marijuana use. Further, factors such as whether a person only casually uses pot or is a heavy smoker also affects the level of THC remaining in his or her body after the impairing effects of the marijuana wear off. Hence, it is difficult to interpret from the results of a positive drug test for marijuana if the individual was actually high at the time of the test or if the THC detected is merely lingering in the individual. Employers are starting to realize that it is increasingly difficult to use the results of a marijuana drug test in the same way as a detection test for alcohol. Instead, employers are looking for tests to measure performance impairment.
Best Practices For Employers to Comply With State Laws
Below we have put together a list of best practices employers can implement to ensure your workplace remains drug free without violating the rapidly shifting state and local laws protecting the use of marijuana.
Just as employers do not tolerate the use of alcohol in the workplace or showing up to work under the influence of alcohol, employers can still implement those same rules with regard to marijuana. Create and distribute workplace policies that delineate the circumstances that would prompt reasonable suspicion that an employee is high and mandate drug testing. The policy should also set forth any consequences an employee could face if the employee tests positive for marijuana.
Employers should train supervisors and managers to spot signs of impairment. An employee may exhibit signs of impairment from marijuana if the employee is disregarding safety protocols, exhibiting odd behaviors, or repeatedly making bad decisions. If it is apparent that an employee is under the influence of marijuana, send that employee to be tested. If the test renders a positive result for marijuana, the employer may take disciplinary actions against that employee for being under the influence of marijuana in the workplace.
Before deciding on drug policies and testing programs, consult with an expert to ensure all policies are compliant with both state and local laws. In addition, employers should note that if the company operates in different states (or even different counties), they must make sure that all policies must vary by location to comply with all state and local laws.
Be sure to thoroughly educate employees about any new drug policy implemented and all repercussions an employee may face for failed tests, including random, reasonable suspicion, or post-accident tests.
While the whirlwind of changes in this area of law has created a lot of confusion for employers, PMP is here to help employers navigate these new laws to develop and implement compliant drug policies and testing programs.