This article was originally published on the Marijuana Patients Organization site on September 19, 2014.
ADP is the largest payroll provider in North America.
Currently, 23 states and the District of Columbia permit the medicinal use of marijuana. Two states also permit the recreational use of marijuana. Understanding how these laws affect an employer’s desire to maintain a drug-free workplace can be a challenge for businesses of all sizes. The following are frequently asked questions about the impact of state medicinal and recreational marijuana laws on the workplace.
Q: What states permit the use of marijuana for medicinal purposes?
A: Currently, the following states and jurisdictions have enacted laws permitting medical marijuana use:
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Q: What states permit recreational use of marijuana?
A: Currently, Colorado and Washington also permit the recreational use of marijuana.
Q: Does federal law permit the use of medical or recreational marijuana?
A: Under federal law, marijuana remains a controlled substance and therefore both medical and recreational use of marijuana is prohibited. This is an especially important point for businesses that have federal contracts, receive federal grants, or are subject to industry-specific rules that have drug-free workplacerequirements.
Q: Our company operates in a state that permits the medicinal use of marijuana. Are we required to permit employees to use it on our premises or during work hours?
A: Currently, no state law requires employers to permit employees to use, possess, or be impaired by medical or recreational marijuana. Thus, employers may enforce zero-tolerance policies and ban marijuana on their premises and during work hours. In such a policy, it is important to:
- Include a provision prohibiting the use of, possession of, and impairment by any illegal drugs on company premises or during work hours.
- Define “illegal” to include all substances that are illegal under federal, state, or local laws.
- Indicate that adverse action may be taken against violators as permitted by law.
Q: Can my company refuse to hire individuals who test positive for marijuana during pre-employment drug testing?
A: Currently, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Rhode Island expressly prohibit employers from making employment decisionssolely on the basis of a person’s status as a medical marijuana user. In these states, the employer may be required to:
- Give the individual the opportunity to produce proof that the positive result was due to medicinal use; and
- Make an individualized assessment as to whether the medicinal use of marijuana would interfere with the candidate’s essential job duties and responsibilities.
In other states with medicinal or recreational marijuana laws, employers are cautioned not to implement a blanket policy of rejecting all candidates who test positive for marijuana. Employers are urged to work closely with legal counsel to determine their rights and responsibilities when a prospective employee tests positive for marijuana.
Q: Can my company discipline current employees for testing positive for marijuana?
A: Arizona, Delaware, and Minnesota expressly prohibit discrimination against individuals because they test positive for marijuana components or metabolites,unless the individual used, possessed, or was impaired by marijuana in the workplace or during work hours. In these states, employers may be required to show they have a reasonable suspicion of use, possession, or impairment (along with a positive test result) before taking disciplinary action against an individual. If an employer intends to administer reasonable suspicion testing, it is important to have clear, consistent definitions of what behavior warrants drug and alcohol testing. Any suspicion should be corroborated by another supervisor or manager. It is strongly advised that employers exercise caution, consult legal counsel in drafting and enforcing policies, and apply the same performance standards and scrutiny to medical marijuana users as other employees. Note: Some states limit drug testing on current employees, and these state laws would also apply to marijuana.
Q: One of my employees is subject to drug testing under the U.S. Department of Transportation requirements for safety-sensitive positions and just tested positive for marijuana. He is claiming medical marijuana, which is permitted in our state, is a valid medical explanation for the test result. Is he correct?
A: The Department of Transportation’s Drug and Alcohol Testing Regulation (49 CFR Part 40, at 40.151(e)) excludes medical marijuana as a valid medical explanation for a transportation employee’s positive drug test result. Thus, regardless of the state, it is unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s regulations to use medical or recreational marijuana. In addition, states that offer job protections to medical marijuana users have exceptions for when the employer would lose federal funding or a federal license.
Q: Does my company have to provide reasonable accommodations to users of medical marijuana under the Americans with Disabilities Act (ADA)?
A: The ADA generally requires employers to provide reasonable accommodations to qualified applicants and employees who have disabilities, absent undue hardship. Under the ADA, employers are not required to provide reasonable accommodations for medical marijuana use because marijuana is an illegal drug under federal law. However, employers should remember that in many cases the underlying condition that necessitates the use of medical marijuana may trigger the need to accommodate the employee in another way under the ADA. In these cases, it is a best practice to engage in the interactive process with the employee to determine if a reasonable accommodation for the underlying condition exists (e.g., offering a flexible schedule). The employer should consider consulting with legal counsel before taking any action if they cannot reach agreement on a reasonable accommodation with an employee.
Q: My company operates in Colorado, where both recreational and medical marijuana are permitted. Our state also prohibits employers from discriminating against individuals for lawful off-duty conduct. How do these laws interact?
A: Some states, including Colorado, have laws barring employers from taking action against their employees for their lawful off-duty conduct. The Colorado Supreme Court is scheduled to hear oral arguments in a case about whether the off-duty conduct law protects medical marijuana users. Thus far, lower Colorado courts have taken the position that, so long as the federal ban on the drug exists, an employee’s use of marijuana is not protected by the state’s off-duty conduct law.
Conclusion:
Employers should keep in mind that many of the state marijuana laws have yet to be tested in court. Employers should continue to monitor for developments in the area, draft and enforce policies in accordance with federal and state law, and consult legal counsel as needed.