California was one of the first states to legalize medical marijuana and since that time many states have done the same. Further, a handful of states (California included) have now legalized recreational use of weed as well. This has in turn created confusion for employers in terms of workplace policy, specifically drug use policies. Hopefully this article will serve to clarify the do’s and don’ts of marijuana in the workplace.
Federal Law
Federal law still classifies cannabis as a Schedule I narcotic, a category reserved for drugs such as heroin that are said to be highly addictive and have no medical value. It is illegal to grow, import, distribute, sell and use. Such is the case even for medicinal purposes. Under federal law marijuana is most certainly illegal in the workplace.
Interaction Between Federal and State Laws
When it comes to marijuana, because it continues to be an illegal substance under federal law, in most instances employers are not required to permit employees to use, possess, or have pot in their system while working. If an employer maintains such a policy, it can discipline and even terminate an employee who is caught violating an anti-marijuana policy.
Recreational Use
Regardless of the plethora of state laws legalizing the recreational use of marijuana, the drug continues to be deemed illegal under federal law and as such employers may prohibit employees from possessing, using or having marijuana in their systems at work. Having said that, excluding employees in high hazard jobs subject to random testing or those governed by federal government agency testing requirements, employers need to have reasonable suspicion in order to test employees for any type of illegal drug. Observable behavior that would lead a reasonable person to conclude that the employee is under the influence (preferably corroborated by another objective individual) will suffice to establish reasonable suspicion. Employers are no longer to infer reasonable suspicion solely based upon the happening of a workplace accident.
Medical Marijuana
Generally, the confusion comes into play in states where marijuana has been legalized for medical use purposes. Employers are uncertain as to whether they can prohibit an employee from using marijuana or having it in their system under circumstances where the state has legalized it for medical use and the employee has a medical use authorization, despite the company’s stated policy holds otherwise.
Twenty-three states have legalized marijuana for medical use and several among them including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada and New York, require employer to treat the individual as disabled and as such go through a reasonable accommodation analysis when dealing with an employee who is authorized to use pot for medical reasons. For example, under Arizona’s Medical Marijuana Act (AMMA), it specifically indicates that employees who are legally prescribed marijuana for specific ailments are protected from discrimination on the job as disabled employees. Having said that, even under the AMMA if an employee’s use of medical marijuana would have negative consequences on the employer’s federal contracts, the employer need not accommodate that employee. Employers and employees alike should note that the AMMA places other limitations on the use of medical marijuana as well.
Recommendations
Employers must have well-crafted drug use policies for their workplace and all employees and management must be fully briefed and trained as to the implications and enforcement of said policies. Employers are wise to check with legal counsel in terms of the applicability of any medical marijuana law and enforce policy accordingly.