Yes, it’s 4/20. Yes, it’s another blog about marijuana. No, it’s not what you think.
Let’s start with some facts. The conversation about marijuana in the workplace is becoming more common. Employers can sometimes struggle to hire employees who can pass a drug test because of recreational or medical marijuana. Much of this stems from the fact that attitudes toward marijuana are changing around the country.
It is also important to know that marijuana has increased in potency over the years. The level of tetrahydrocannabinol (THC), the psychoactive ingredient, has increased from an average of 1% in the 1960’s to over 15% now. In fact, strains in Colorado have tested between 25-30% THC. The impact of one use of marijuana is much more potent today than it was 50 years ago, however many believe it is “just a joint” like it was before.
Over the past decade, more than half of the states have legalized medical marijuana and 15 states and the District of Columbia have allowed recreational marijuana. In addition, 20 states provide some sort of employee protection for those using medical marijuana. With these recent changes, and the patchwork of employee protections, what is an employer to do about the wacky weed?
(as of 4/20/2021)
OSHA requires an employer to provide a work environment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees,” also known as the General Duty Clause. This means as an employer, you are responsible for the well-being of the employees. So how does marijuana fit into this situation?
First, most employers have a drug-free workplace policy. As marijuana, and medical marijuana, have become more prevalent, some companies have either removed the restriction on marijuana, or provided an accommodation for medical marijuana in their policy. While not all states require an accommodation at this point, many companies are being proactive to prescribe the way in which medical marijuana can be accommodated.
Drug testing has also changed. While some companies have removed marijuana from the tests, other companies have decided to forego pre-employment testing altogether. This could be a challenge for those companies who receive a workers’ compensation credit for providing a drug-free workplace under a state-certified program. It's important to outline exactly what the company's policy is regarding the drug-free workplace program and the impact of medical marijuana. It is also just as important to understand what employee protections might be provided by state law.
Currently, there is no allowable federal use of marijuana. It is still listed as a Schedule I drug on the Controlled Substances Act (CSA). However, as mentioned before, 20 states currently provide some sort of employee protection for those who are using medical marijuana. These protections can include anti-discrimination, prohibition that a positive drug test leads to automatic termination, accommodation under state disability laws, a requirement of impairment before an adverse action against an employee, prohibiting the questions about marijuana use in an interview, and more.
These employee protections are currently being tested in courts around the nation on both the state and federal levels. Some states have no protections listed in state law, but that may just be a matter of time.
On the federal side, the Americans with Disabilities Act states that employer does not have to accommodate an illegal activity. Because the ADA is a federal law, there is no requirement to accommodate medical marijuana use as a reasonable accommodation because of the CSA. State law may say otherwise.
My current advice to employers is to decide if they want to accommodate the use of medical marijuana and if so, under what conditions.
A question I often get from employers is what do I do about an employee who requests accommodation to be able to use medical marijuana for their medical condition. My answer, it depends. What is the company policy? What is the role/job of the employee and their responsibilities? Are they in a safety sensitive position? Are they covered under federal DOT regulations that prohibit marijuana use? Have you accommodated any other employees for their use of marijuana, or another drug that can have an altering effect on the employee?
My current advice to employers is to decide if they want to accommodate the use of medical marijuana and if so, under what conditions. For example, a Florida employer had an employee who worked for them for 15 years in the accounting department. This employee tested positive for marijuana after a random drug test. Come to find out she had been using medical marijuana for two years unbeknownst to the company.
Obviously, the use of medical marijuana was not impacting her ability to do the job and she was not in a safety sensitive position. The company decided to accommodate the use with certain conditions. Those conditions included the restriction of possessing or using marijuana at the workplace and ensuring that the employee did not come to work under the influence of marijuana. It was also noted that should her work be impacted, and it was reasonably determined that the impact was because of marijuana, the employee’s position could be in jeopardy. The company would not be able to rely on a drug test in this instance because she would test positive but rather it would be a judgment decision by the supervisor and human resources.
There was another case where an applicant applied for a forklift driver position. During the application process, the applicant stated that he had a medical marijuana card and wanted to be able to continue to use marijuana while employed by the company. Because this position was a safety sensitive position, the company did not accommodate the use of medical marijuana. This applicant was not hired.
Unlike alcohol, there is no test for immediate impairment for marijuana. This puts the responsibility of determining impairment into the hands of the employer on a subjective basis.
Unfortunately for employers, the question of medical marijuana is not an easy one to answer. If an employer has a zero-tolerance policy for all illegal drugs, including marijuana, they could run afoul of the changing laws requiring the accommodation of medical marijuana. No company wants to be the first case in a state court to determine the ability of an employer to prohibit marijuana where medical marijuana is legal.
On the other hand, if an employer accommodates the use of medical marijuana, or removes marijuana from their drug testing program, the employer may run into liability should an employee who uses marijuana get into an accident and injure themselves, or another employee while under the influence.
Unlike alcohol, there is no test for immediate impairment for marijuana. This puts the responsibility of determining impairment into the hands of the employer on a subjective basis. It would be much easier to regulate the medical use of marijuana if there was a test for immediate impairment. Drug tests can reveal THC levels in an employee for days, weeks, or months after drug use, depending on the level of use.
Marijuana laws are still evolving and will continue for some time to come. Review your drug-free workplace policy now and determine whether or not you will accommodate the medical use of marijuana. Understand your state laws and train your managers on not only recognizing the signs of impairment, but also how to handle a request for accommodation. My recommendation to employers, consult your legal counsel to determine your best course of action.
By applying a policy consistently, but being flexible where needed, an employer can successfully navigate the marijuana fog in the workplace.