While the public sentiment towards use of marijuana continues to be positive and the number of states legalizing it continues to grow it is important to remember that it remains illegal under federal law. This means that employers who are subject to federal regulations such as those in transportation, government contracting, may be prohibited from employing individuals who use marijuana, even if it is legal in their state.
Thirty-seven states, the District of Columbia and three U.S. territories have passed laws legalizing the medical use of marijuana along with 21 states D.C. and two territories have legalized non-medical use of the substance. The most recent states to join the party are Maryland and Missouri, both of which passed laws during the recent mid-terms. Missouri’s law went into effect in December, and Maryland’s law will take effect July 1.
Each state law legalizing marijuana is different which requires employers to make sure they stay on top of state and local laws to stay in compliance. Even with the hodge podge of different laws there are a few general common threads that employers should be aware of and pay attention to.
Drug testing policies need to be checked regularly and kept current based on new state laws and case decisions. Given the fluidity of laws and decisions in this area you may want to have your legal counsel review your drug policy quarterly to make sure it is up to speed. An area that employers need to pay particular attention to is does a state or local law provide employment protections for medical use, adult recreational use or both? Current examples of states that have laws protecting off-duty use are California, Connecticut, Montana, Nevada, new Jersey, New York and Rhode Island. The other area that requires diligent focus is does a state or local law prohibit pre-employment drug testing. Currently New York City, Philadelphia and Nevada prohibit taking adverse action for a positive marijuana pre-employment test and New Jersey prohibits taking adverse action solely based on a positive test. A promising development for employers in drug testing is the emergence of marijuana impairment test.
Another area that employer must remain diligent about is ‘accommodating medical marijuana use.’ In some jurisdictions, employers may be required to accommodate employees who use marijuana for medical purposes, similar to how they accommodate other prescription medications.
Some of the states that require employers to accommodate medical marijuana use include:
Employers cannot discriminate against an employee who is a registered medical marijuana patient and cannot take action against an employee based solely on a positive drug test for marijuana, unless the employee used, possessed, or was impaired by marijuana on the job or during work hours.
Connecticut: Employers cannot discriminate against employees or job applicants based solely on their status as a medical marijuana patient. However, the law does not require employers to allow the use of marijuana at work or accommodate the use of marijuana that would impair an employee’s ability to perform their job duties.
Delaware: Employers cannot discriminate against an employee or applicant based solely on their status as a medical marijuana patient, and cannot take adverse action against an employee who tests positive for marijuana unless the employee was using or impaired by marijuana on the job or during work hours.
Illinois: Employers cannot discriminate against an employee or applicant based solely on their status as a registered medical marijuana patient, and cannot take adverse action against an employee who tests positive for marijuana unless the employee was impaired by marijuana on the job during work hours.
It’s important to note that the laws in these states do not necessarily require employers to allow the use of marijuana at work or accommodate employees who are impaired by marijuana on the job. Employers should consult with legal counsel to ensure their policies and practices comply with the law in their jurisdiction.
Employers should also stay on top of state and local laws focused on the expungement of certain marijuana convictions which has a direct baring on the information that may legally be reported by their background checking provider.
In general, while marijuana use is increasingly legal, state laws tend not to protect impairment at work, and employers generally do not have to allow employees who are under the influence to work. Employers are being forced to rethink their approach and application of drug testing for marijuana to ensure fair treatment of applicants and employes while also providing a safe work environment.
Despite the challenges presented by the many different state and local marijuana drug testing laws employers must not lose sight of the importance of providing a safe work environment and not pulling back on this overarching goal. Also, employers need to know that help may be on the way with emerging technologies like Glaze that measures actual impairment using a virtual reality like headset to measure eye movements. Until impairment standards and tools are in place it is wise to keep your attorney on speed dial to ensure you stay on top of the myriad of issues. Take the time to review issues with your attorney before you take an action that you will later be sorry about.