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Apr 2016

You have pot smokers on the job. Now what?


Safety Worker Holding Marijuana Cigarette

Marijuana use is still illegal under the federal Controlled Substances Act (CSA), yet many states have legalized its use for medical or recreational purposes.  While the federal government has stated it will no longer prosecute people who abide by their state’s laws relating to marijuana use, the discrepancy creates a huge issue for employers who are tasked with maintaining a safe workplace.  As the battle over legalization continues, employers are trapped in the middle asking themselves what they can do to address the issue. 

Can I take action against an employee who tests positive for marijuana?

At the federal level, there is no protection for medical marijuana use, and the answers to this question can vary greatly by state.  The courts in some states have been favorable to employers, and some have sided with employees by adding certain protections.  In most states the laws are unsettled, and likely won’t be ironed out for quite some time.  If you currently operate under a “zero tolerance” policy for illegal drug use, you may be in for a surprise if it is ever challenged.  Some states such as Arizona, Delaware, and Minnesota have enacted specific protections to shield employees from adverse action based solely on a positive drug test.  As a general guide, if you can show that the worker was compromised (especially in a safety or vehicular role) while performing their job duties you should be in the clear.  However, a positive test for marijuana alone may prove to not be grounds for dismissal.  Before taking action, employers should review the employee’s medical marijuana card and open a dialog with the employee in an attempt to ascertain whether there are alternatives that may be appropriate (such as THC containing Marinol).  Be careful never to inquire about the specific medical condition for which the marijuana was prescribed as employees have a right to privacy concerning their medical conditions.  When in doubt consult with your legal counsel for advice based on the most current statutes and court decisions in your state.

Must an employer make special accommodations for users of medical marijuana?

There are currently no jurisdictions in the United States that have a medical marijuana law requiring employers to accommodate medical marijuana use by employees unless employment-related protections are included in the statute.  You might think the short answer then is a whopping NO.  Like every other issue surrounding marijuana use the waters are murky.  You likely are not required to reasonably accommodate the use of medical marijuana, but tread lightly.  Nevada requires (and Hawaii nearly followed suit) employers to make reasonable accommodations for an employee who is a registered medical marijuana user.  If your employee falls under the federal Americans with Disabilities Act you’ll want to work directly with a skilled employment lawyer to make sure you’re following all the state and federal laws.

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