As states continue to liberalize marijuana use, employers are left in a bind in terms of enforcing no-drug policies, respecting their employees’ right to privacy and keeping a safe workplace.
While a majority of states have medical marijuana laws on their books, only a handful of states require employers to accommodate (to a degree) staff who use medical marijuana. And many states, including California, have established case law stating that employers do not have to accommodate someone who has a medical marijuana prescription.
Complicating matters for employers, more states are legalizing recreational marijuana.
Since employers have to balance their legal obligations to their employees, they also have to be able to ensure they have a safe workplace that is free of drugs. Here’s a guide to the main issues facing employers:
The Americans with Disabilities Act prohibits employers from discriminating against employees on the basis of a disability, and the law requires employers to provide a reasonable accommodation to them if needed. The word “reasonable” is there to ensure that the accommodation does not impose any undue hardship on the employer.
Often, medical marijuana is prescribed to people with disabilities who are considered protected individuals under the ADA. In many cases, the use of marijuana can be vital in allowing a disabled worker to do their job and also perform major life activities.
While the ADA bars discrimination against individuals with disabilities for employment purposes, courts in many states have ruled that medical marijuana use is not a reasonable accommodation.
But, in 2008, the California Supreme Court ruled that employers have a right to drug-test and fire patients who test positive for marijuana, regardless of their medical use.
It based its decision on the fact that because the state’s Fair Employment and Housing Act does not require employers to accommodate illegal use, an employer can lawfully terminate an employee who uses medical marijuana.
More recently, in 2012, the Ninth Circuit similarly held that the ADA does not offer job protection for medical marijuana users because marijuana is an illegal substance under federal law.
That said, as medical marijuana becomes more accepted, companies may want to consider revising their policies to include accommodations for use.
One way to do this is to create policies that bar marijuana use in the workplace, particularly smoking or vaping, but be more forgiving with use outside of work hours. If you also drug-test, you’ll need to make exceptions as employees can show positive for drug use at work even though they may have used marijuana the day before at home.
Your policies should take into account that you have a legitimate interest in ensuring that any medications the employee takes are used in a responsible manner and will not affect job performance. Your company policy could state that a prescription for medical marijuana does not entitle an employee:
- To be impaired at work.
- To compromise his or her safety, or the safety of others.
- To smoke in the workplace.
- To unexcused absences or late arrivals.
If you have a business in one of the handful of states that has legalized recreational use of marijuana, you should consider revising your company’s drug policies.
While you cannot legally bar employees from using cannabis outside the workplace, you can regulate them using it on the job or showing up intoxicated at work.
One good solution is to model your recreational marijuana policy after your current policies on alcohol.
To cover your operation, you should probably prohibit employees from smoking marijuana at the office or to come to the workplace under the influence of any psychoactive substance. The policy should outline the specific consequences for breaking the rule.
Some employers may consider prohibiting marijuana use in a recreational-use state and continue drug-testing of workers. But this approach could run into legal challenges and would be difficult to enforce if the employees are not using on the job.
The exception should be for workers that operate heavy machinery, or work in construction, transportation or other dangerous occupations. In these jobs, working under the influence of marijuana should be strictly prohibited, just as on-the-job alcohol use is. Companies can also alter drug-screening guidelines to exclude cannabis during routine drug tests.
Since the effects of marijuana can last many hours, you will also specifically need to spell out the rules for lunch breaks. Employees should be able to return from their breaks and be ready to start work again without being under the influence.
Overall, while it seems daunting, these issues will get ironed out over time. For now, you should try to set policies that will ensure that you can keep a safe workplace, while respecting employee privacy.
Over time, the policies that will be recommended for employers are likely to be similar to those for alcohol use and intoxication in the workplace.