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Legalized Marijuana: Are your employer rights up in smoke

By December 3, 2020December 8th, 2020No Comments

More states this year began to allow the legalized use of marijuana. Do these new laws, and others already on the books, prevent you from prohibiting the use of marijuana by your employees? Maybe. It all depends on the state in which you operate your nonprofit and which positions may be safety sensitive. Legalized marijuana may indeed change things in your workplace.

A majority (35) of our United States, and the District of Columbia, now have laws that legalize the use of marijuana in one form or another. Some of those states have very limited medical compassionate care use, all the way to 15 states that have legalized marijuana for recreational use. Even though many states have legalized marijuana in some form, it is still illegal under federal law. This is important for organizations with safety sensitive positions, where the health and safety of employees and clients are paramount.

501(c) HR Services receives dozens of calls each year ranging from; the employer’s rights to deny usage of any kind; dealing legally with an employee who tests positive for marijuana; the employee who has a doctor’s note with a medical marijuana card allowing medical usage; to the most common question “do we have to allow as an ADA accommodation?”

The answer to the ADA question is simply, no. The ADA is a federal law. So, while you may not have to accommodate under the ADA, you still must follow the ADA and engage in the interactive process and make a case for “undue hardship” for not allowing the accommodation. There are recent court cases that have considered the issue and have found that while the ADA does not require an employer to accommodate an employee’s use of marijuana, even if they use the drug pursuant to a prescription and their marijuana use is lawful in the state where they work, some state courts have decided that employers may need to accommodate an employee’s use of medical marijuana under state law. Confusing! Now what?! There is much to consider.

First, there is no current law that permits employees to be under the influence of marijuana in the workplace.

Second, perhaps it is time to revisit your drug testing policies. You might consider no longer testing for metabolites. That would mean no longer testing for marijuana.

After the November 2020 election, we received a number of calls from concerned clients wanting to understand the implications of newly enacted laws allowing recreational marijuana use in their organizations and whether this now meant they couldn’t enforce their Drug-Free Workplace policies.

The good news is that, overwhelmingly, the states with medical and recreational use laws have provisions that protect organizations that maintain (or will implement) a Drug-Free Workplace. Those provisions will not interfere with the organization’s right to maintain a drug and alcohol-free workplace, nor will they require the organization to accommodate the use or affect the organization’s ability to have or maintain policies prohibiting the use of marijuana by employees and prospective employees. This may cause an organization to be at odds with state laws. However, organizations are free to maintain and enforce any zero tolerance drug policies, especially for those positions that must ensure the health and safety of their clients. Be ready with strong documentation that clarifies WHY you are enforcing your Drug-Free Workplace.

Your workplace drug policies will be critical in maintaining and enforcing your Drug-Free Workplace. Make sure that employees know that disciplinary action, which may include termination of employment, may take place if someone tests positive for marijuana. Be aware of your current policy and what it says regarding drug testing and verify that your drug testing policies are legal in your state.

The U.S. Department of Labor gives us some general guidance:

Under the Rehabilitation Act of 1973 and the ADA (Americans with Disabilities Act of 1990) employers were given the right to prohibit the illegal use of drugs and alcohol in the workplace. The ADA is not violated by testing for illegal drug use and marijuana is still illegal under federal law.

Bottom line:

We encourage you to review your current policies to make sure you are in compliance with the laws and are clear to your employees what your policies and procedures entail drug testing and what the consequences are should they test positively for any drugs, including any metabolites. Consider including language dealing with legal off-duty conduct and the implications of participating in off-duty recreational marijuana and what that may mean for their employment at an organization that clearly has and enforces their Drug-Free Workplace policy. Don’t forget that if your organization receives any federal grants, contracts or funds, your organization must abide by the Drug-Free Workplace Act or risk losing that federal funding. Any revisions of, or adoptions to, your policies and procedures should be reviewed by a labor and employment law attorney licensed in your state.

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