With more and more states adopting medical marijuana laws, new questions are arising for employers regarding their requirements for compliance with the new laws. Are employers required to allow employees with legal medical marijuana cards to consume marijuana on the job? Can they be under the influence of the drug while at work? What about driving or operating machinery? For that matter, can employers even drug screen potential or current employees for marijuana and use the results for hiring and firing decisions? These are all legitimate questions that a growing number of employers need to know the answers to, because of the continued proliferation of state medical marijuana laws. To answer these questions, details of both federal law and the state marijuana laws need to be examined.
Starting with federal law, marijuana, for medical use or otherwise, is still classified as a Schedule 1 drug under the Controlled Substances Act and is federally illegal in all forms. The Americans with Disabilities Act (ADA) states that no employers can discriminate against an employee with a disability and must make a ‘reasonable accommodation’ to allow employment.
However, the use of marijuana is not protected as a reasonable accommodation, because its use may pose a health or safety threat. Therefore, a person with a disability requiring the use of medical marijuana would not be discriminated against if employment were denied or terminated. So from the federal perspective, no laws are being broken by denying the use of medical marijuana or prohibiting being under the influence of marijuana in the workplace, regardless of its medical use.
Turning to individual state laws, while they all have major differences, there are some common themes. Universally, the laws ensure that patients who legally obtain a medical marijuana card are not subject to criminal sanctions or prosecution within the state in which they obtained the card.
Since 2009, the Department of Justice has agreed to not prosecute individuals who are compliant with their state’s medical marijuana law, but instead their enforcement priorities are on large- scale sales. Because who is allowed to obtain a medical marijuana card and for what medical conditions varies by state, currently no state but Nevada allows for reciprocity of cards between states.
None of the current state laws dictate that employers must allow employees to either consume marijuana at work or be under the influence of marijuana at work. In fact, most state laws specifically state that the drug cannot be consumed in public, but only in various definitions of private, and prohibits activities such as driving while under the influence. The Colorado law even states that one is not allowed to ski while under the influence of marijuana.
In addition, none of the state medical marijuana laws include provisions that disallow drug testing for marijuana as a pre-employment screening test in consideration of employment decisions, nor such testing as a stipulation for continued employment. There is precedence in the courts, such as the 2008 California Supreme Court decision of Ross vs. Raging Wire Telecommunications Inc., where it has been ruled that employers can prohibit employees from possessing, using, or being under the influence of marijuana at work, regardless of its legitimate medical usage. It is treated the same way as being drunk, therefore the legality of the drug outside of the workplace is irrelevant.
However, the courts in cases such as Ross vs. Raging Wire have also stated that employers cannot fire or refuse to hire a person because they have a medical condition they are treating with medical marijuana. That is a very important distinction that employers need to understand, and where it may get tricky is in the hiring process, especially with pre-employment drug screening.
So, what are employers to do? First and foremost, any employer in a state that has a medical marijuana law, or has employees that live in a state with such a law, needs to read and fully understand the law. Each state law is different and may include nuances that affect how an employer should deal with the issue.
Employers should also read and understand their individual state’s laws and legal precedents regarding drug testing of both potential and existing employees. Virtually all states allow for pre-employment screening drug testing, including for marijuana. Some states do not allow for random drug testing of existing employees for invasion of privacy reasons, but most states do allow for ‘reasonable suspicion’ drug testing. This includes suspected impairment from being under the influence of marijuana or other substances at work.
Next, based on the laws in their state and the decision of the employer, a company policy must be developed— in writing—about the use or influence of medical marijuana on the job, and then the company must comply with that policy. There are a few policy options.
The first option is to allow employees with legal medical marijuana cards to use the drug at work. This is an option which very few companies choose.
The most obvious reasons for not choosing this option are that it impacts productivity and could pose a risk to others. The reason the ADA doesn’t allow medical marijuana usage as a reasonable accommodation is that the usage is difficult to control, because you don’t know from one session to the next what the reaction to the drug will be.
There may be other more tangible issues with this option, depending on the type of work done by the company and the requirements of its employees to operate machinery or interact with clients. If work is done by the company in multiple states, it may be the case that medical marijuana is legal in one state but not the other. Additionally, if any work is done for the federal government or on federal property, that may cause an issue, such as loss of a contract, due to the federal status of the drug. The employee may not be able to be prosecuted but that doesn’t mean the company may not face consequences.
The second option is to adopt a policy that simply states that the company does not tolerate the use of/or being under the influence of any illegal drug during the workday, including medical marijuana. This zero-tolerance policy, if applied equally and in all cases, allows the employer to not hire a prospective employee or to fire a current employee for testing positive for marijuana or for being under the influence of marijuana at work, medical or otherwise. The policy must be in writing and it must be applied equally.
This option may seem heartless when dealing with real people with real medical conditions who are being helped with the use of medical marijuana, but it does protect the good of all the employees by removing potential workplace risks. This choice also protects the company from potential litigation that may arise from allowing an employee to work while under the influence. Many companies choose this policy option.
The third option is a hybrid of the first two and is subjective in nature. The policy includes the language of the zero-tolerance policy but adds a statement, such as, if the employee has a condition for which he or she is being treated with medical marijuana, the company should be engaged to discuss any possible accommodations.
This leaves the door open to employers working with employees to find a way to get the work done that won’t interfere with the employee’s ability to perform and allow them to be productive.
It should be noted that the employer is not obligated to do any particular accommodation that the employee asks. For instance, the employer may still disallow the use of medical marijuana at work, even though the employee wishes to, but may change their work schedule to accommodate the times they need to medicate and be under the influence.
The subjective nature of this option, and its application, does leave the employer open to potential litigation and employee discord, while the other two options do not. Also, the type of work and clientele of some companies would not allow for such flexibility. However, many companies have adopted such a policy with success.
As with the issue of medical marijuana use itself, the question of how employers should deal with its use is complicated. It requires research, soul searching, and decisions that are in the best interest of the company and its employees. One thing is certain, the issue cannot be ignored. As more states pass legalized medical marijuana legislation and the number of patients increase, more and more employers will need to address the issue and the requests from their employees. No matter how the employer chooses to manage the issue, now is the time to get ahead of the matter, adopt and adhere to a policy, and understand that it’s a brave new world.
Editor’s Note: Brian Laslow is an independent security consultant and has been in the industry for more than 30 years. He is an expert speaker in the field of security and holds multiple certifications in the security and consulting fields.
Laslow is also the author of The Marijuana Project, a novel about medicine and morality. His book is a fictional account about a security consultant’s ethical controversy and experience with a medical marijuana client. More information can be found at www.themarijuanaproject.org.