Handling marijuana in the workplace - The next really hard problem for employers
by Ogletree Deakins
One headache that employers frequently encounter is how to properly handle drug and alcohol issues. No employer wants employees to be under the influence of drugs or alcohol during work hours, but employers also are struggling to hire and retain employees in a tight labor market. So, on the one hand, employers want to keep their workplaces safe and free of impaired workers. However, employers also must be able to run their businesses and have enough workers to do so.
Adding to this conundrum is the rapidly spreading and constantly evolving nature of marijuana legalization laws. While some states have had marijuana laws in place for several years, these types of laws and court treatment of marijuana-using employees and applicants began to become more restrictive for employers beginning in 2017.
Since then, marijuana legalization has exploded. In 2020 and 2021— even in the midst of a global pandemic — Alabama and South Dakota passed medical marijuana laws; Arizona, Connecticut, Montana, New Jersey, New Mexico, South Dakota and Virginia passed recreational marijuana laws; and Virginia passed a significant amendment to its existing medical marijuana law, which created protections for medical users. Employers should expect these developments to continue in the next few years, thus creating a difficult patchwork of widely variable state-specific laws.
This article will briefly introduce the topic of marijuana and the workplace, debunk the biggest misconception about the topic, and provide some practical tips and solutions.
Marijuana and the workplace — Isn’t this just a drug testing issue? In a word, no. While seemingly narrow in scope, the topic is much broader than most employers realize and there are many sub-topics that fall under the umbrella of marijuana and the workplace. This list includes, but is not limited to, compliance with marijuana legalization laws themselves, drug testing, disability accommodation, workplace safety, workers’ compensation, compliance with federal regulations and laws, government contractor considerations, unemployment benefits and compliance with lawful off-duty conduct laws.
Aside from this complexity, this topic also presents the unique intersection where “morals” and “the law” collide. Thus, the topic tends to evoke strong opinions based on any number of factors such as political or religious beliefs, geographic location, age or background. For example, a young San Francisco Bay area resident is likely to have a different opinion of marijuana than an older Alabama resident.
Marijuana laws 101. With marijuana legalization, state laws vary widely. Some states have legalized marijuana for medical purposes only, some have legalized for both medical and recreational use, and, while now the minority, some have not legalized marijuana for any purpose. While recognition of which states fall into which categories is important, it is equally important for employers to understand the relevant employment issues for both medical and recreational marijuana states.
Medical marijuana laws fall into one of two categories:
Those that contain express employment protections for medical marijuana cardholders.
Those that do not.
In states that fall into the first category, employers must remain mindful that taking adverse employment action — e.g., withdrawal of a job offer or termination — against a medical marijuana cardholder may trigger a legal claim for violation of the medical marijuana law itself. And, in any medical marijuana state, employers must remain mindful of the possibility of a disability claim because a medical marijuana cardholder theoretically cannot obtain a medical marijuana card without having some qualifying medical condition. Thus, a medical marijuana cardholder likely would be considered “disabled.” Therefore, regardless of whether a state medical marijuana law contains express employment protections, medical marijuana cardholders may be able to assert a separate claim under federal and/or state disability discrimination laws.
Recreational marijuana laws historically have not contained employment protections, however, this is starting to change. New Jersey recently passed a recreational marijuana law containing employment protections for recreational marijuana users, and Connecticut passed a similar law that goes into effect in July 2022. Moreover, New York and Montana have encompassed recreational marijuana users under “lawful off-duty conduct” laws — which prohibit employers from taking action against individuals based on otherwise lawful off-duty actions — thus providing indirect employment protections for recreational marijuana users. As a result of these developments, employers now must recognize that recreational marijuana users, in addition to medical marijuana cardholders, may have workplace protections.
Wait … isn’t marijuana still illegal? Marijuana remains a schedule I substance under the federal Controlled Substances Act (CSA). However, courts have routinely determined that the CSA does not supersede state marijuana laws, meaning that employers should not rely on marijuana’s illegal status as a basis not to comply with state marijuana laws.
Importantly, just because marijuana is illegal under federal law does not mean that employers are prohibited from employing individuals who engage in illegal activity. As a Connecticut judge stated in 2019: “The fundamental issue is that the CSA does not make it illegal to employ a marijuana user. Indeed, the CSA does not purport to regulate employment practices in any manner.”
However, employers should recognize that there is a difference between the CSA and certain federal regulations that expressly require drug testing and adverse action based on positive tests. An example would be federal regulations governing Department of Transportation (DOT) drivers. Compare this to the CSA — which doesn’t require employers to do or not do anything at all.
What can employers do? Employers should recognize that no marijuana law allows for workplace impairment. Employers should continue to maintain reasonable suspicion testing for marijuana and any other substance and should train supervisors on how to spot and document impairment on a reasonable suspicion checklist.
Otherwise, whether to continue other forms of testing — e.g., pre-employment or random — remains an operational decision for employers. Employers should consider whether continued testing makes sense, taking into account potential legal risks, safety considerations, geographic footprint, operational considerations and company culture.
Employers also should:
- Review their drug-free workplace or testing policies and determine whether updates are needed.
- Develop a plan on how to handle marijuana issues in the workplace, which should start with elevating all such issues to legal counsel or high-level human resources.
- Develop a method to be able to stay current with the ever-changing status of state marijuana laws.
While employers may be overwhelmed with the evolution of marijuana legalization and the impact on the workplace, the key to handling these issues is to ensure careful evaluation and analysis of each individual situation on a case-by-case basis.
This article is provided by Ogletree Deakins, Atlanta, a legal firm with an HR focus. The American Rental Association (ARA) recently partnered with Ogletree Deakins to provide human resources help and guidance to ARA members. Learn more online at ARArental.org/manage-business/HR.