Excerpted from an SFGate story by Midge Seltzer
If your company drug tests employees, now is a good time to evaluate how the expanding legalized use of marijuana will impact your policies and your business. More employees will inevitably test positive for marijuana. By taking time to evaluate the consequences of this, you and your HR team will have strategies in place and be better positioned to respond on a legal and operational level.
In the states where marijuana has been legalized, enforcing drug-free workplace policies can be a significant challenge. Of the 31 states allowing marijuana use for medicinal purposes, 11 states (Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania and Rhode Island) have statutes that explicitly prohibit employment discrimination against medical marijuana users.
In several states — including Connecticut, Maine and Massachusetts — an employee who tests positive for marijuana but is legally allowed to use marijuana for medical purposes has a viable claim against an employer for enforcing drug-free workplace policies without accommodations or other considerations.
An emerging trend in employment law
According to the American Bar Association, cases in which employees sued for discrimination resulted in favorable verdicts for them. One federal court in Connecticut recently reasoned that the federal Drug-Free Workplace Act, which many employers including federal contractors rely upon for policies on drug testing, does not specifically require drug testing and does not prohibit federal contractors from employing people who use medical marijuana outside the workplace and in accordance with state laws.
Further complicating the matter for multi-state employers, state statutes pertaining to the legal use of marijuana vary, and while certain states have sanctioned marijuana, its possession is still a federal crime. To confuse matters even further, court rulings have offered an inconsistent roadmap for companies that want to determine if they should drug test for marijuana, and what to do with a positive test result.
For example, while some courts have ruled in favor of employees as noted above, the California Supreme Court in Ross v. Ragingwire reasoned that because the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate illegal drug use, the employer could lawfully deny employment to individuals using medical marijuana, since it is illegal under federal law.
What, then, should your business do to adjust or modify drug testing policies relative to the legal use of marijuana? Here are some basic considerations:
1. Evaluate Your Policy
If medical and recreational marijuana use is allowed in states where your employees work, it’s time to examine the core motivation behind your drug testing policy. Some companies, such as those that do business with the federal government, may be required to test certain employees. Safety-sensitive positions, such as drivers, equipment operators, and pilots, are subject to alcohol and drug screening, as well.
Perhaps your company is not legally required to test employees, but instead has decided to establish a drug-free environment, with testing as a component. Ultimately, you need to determine the overall temperament of your organization for medical marijuana use when it is legally allowed and consider interactive accommodations for certain workers. Some employers have gone as far as eliminating testing for marijuana altogether while maintaining other drug testing requirements, reasoning that testing for marijuana automatically excludes too many otherwise qualified employees in the current challenging hiring environment.
2. Understand the Specific Legal Requirements
It is possible that the specific medical marijuana laws in your state (or states, if you operate in multiple regions) require you to discuss possible accommodations for the use of medical marijuana. You also need to consider the impact of the Americans with Disabilities Act. Based on the law, you may need to revise your drug testing policy to include an accommodation process; you will also need to determine when discipline or termination may be appropriate for medical marijuana users.
Finally, for safety-sensitive positions, determine what standards apply relative to medical marijuana use. In the end, zero-tolerance drug policies in the workplace may be enforced as long as they do not violate state law. Currently, a majority of state statutes include certain employer exemptions as well as policies that ban marijuana use on-the-job or on the premises.
As more states legalize marijuana use, your organization should prepare for a rise in positive test results, and for challenges from employees who have failed drug tests or who claim they were not impaired while working. To ensure you are in compliance, consult an employment law expert or an experienced HR consultant who can provide guidance and help you navigate through the maze of federal and state statutes.