Over the past several years, the legal landscape of marijuana use has shifted dramatically. Each year, more and more states legalize marijuana. Many states only allow for medical marijuana use, but some states also permit the sale and consumption of recreational cannabis. The legalization of marijuana raises many questions for employers. For example, if a state legalizes marijuana, do companies in that state need to change their substance abuse policies? Can employers still test employees for marijuana? Can employers still fire employees who test positive for marijuana? If the legalization of marijuana leaves you baffled as an employer or an employee, scroll down for answers to some common questions.
The Legalization of Marijuana and How It Affects the Workplace
Which states have legalized marijuana use?
Let’s start with the basics. Although marijuana remains illegal under federal law, many states now allow for the sale, consumption, and possession of marijuana. Currently, as of September 27, 2016, marijuana is legal for recreational use in Alaska, Colorado, Oregon, Washington, and the District of Columbia. Many other states have legalized medical marijuana, however, and some have decriminalized cannabis possession laws. Ohio is the most recent state to legalize medical marijuana; Governor John Kasich signed the bill into law on June 8, 2016.
To view a list of all states currently allowing the use of medical and/or recreation marijuana, please visit the website of the National Conference of State Legislatures. Their charts also specify which states require patient registry or ID cards, which allow dispensaries, which allow for retail sales, what marijuana products they allow, and more.
Does the legalization of marijuana affect federal, DOT, or drug-free workplace policies?
Employers can continue to set their own substance abuse policies regardless of their state’s position regarding the legalization of marijuana. So even if your state allows for marijuana use, you can maintain a drug-free workplace policy and implement drug testing. The only difference is that in these states, an employee who tests positive for marijuana will not face criminal charges.
In addition, the legalization of marijuana will not impact federal drug testing or Department of Transportation (DOT) testing regulations. Employees in safety-sensitive positions in transportation-related jobs are still prohibited from using marijuana, and this will remain unchanged even if more states legalize marijuana. As marijuana remains a Schedule I drug of the Controlled Substances Act, the alteration of cannabis’s legal status in individual states won’t change federal or DOT drug testing.
However, some states’ marijuana laws do include provisions that affect employers’ rights. For example, some laws include anti-discrimination provisions. Others maintain that a positive drug test does not indicate impairment, so before taking adverse action, the employer must review other details of the situation. For example, what is the worker’s job description? What leads you to believe the worker is impaired by marijuana use (physical signs, symptoms, etc.)? Is the worker using marijuana legally and lawfully?
Finally, some states require all employers to accommodate individuals with medical marijuana cards. Although the employers are not required to allow these workers to use marijuana at work, they must carefully review the employees’ rights. For example, employers may not be allowed to discriminate against medical marijuana cardholders.
Can companies still test for marijuana and fire employees who test positive?
Yes. As the Columbus Dispatch noted just a few days before Ohio legalized medical marijuana, employers may keep their drug testing policies whether their state has legalized marijuana or not. They may also take disciplinary action based on positive drug test results. Some argue that this infringes upon the rights of employees and could result in discrimination. Others believe that the rule protects both employers and employees from the negative ramifications that can result from marijuana use in the workplace.
Note that the company must communicate their drug-related policies upfront in order to fire (or refuse to hire) someone who tests positive for marijuana use.
Should companies remove marijuana from their testing policies if it is legalized?
Although the law does not require companies to remove marijuana from their substance abuse policies upon the drug’s legalization, why not take the news as an opportunity to review your company’s drug-related policies?
Especially if many years have passed since you created the policies, take some time now to update your rules and remove antiquated regulations. You may also need to create new rules. For example, what is your company’s policy regarding the use of legally prescribed drugs? As you decide whether to retain, adjust, or eliminate your company’s current drug-related policies, take the following factors into consideration:
- If you do decide to alter your company’s drug policy based on the legalization of marijuana (whether recreational or medical), address any related safety concerns. In some industries, the use of marijuana can present significant safety hazards.
- Some employers are choosing to grant leniency to employees using medical marijuana prescribed by a doctor. They recognize that marijuana used to alleviate the symptoms of cancer or a chronic illness is similar to other pain relievers.
- Marijuana can stay in the body for days or even weeks after use. So if an employee tests positive for marijuana, that does not necessarily mean they were impaired while working.
- Other drugs, like prescription painkillers, can also affect a person’s reflexes, judgment, and decision-making skills. Do you need to update your policy regarding these substances as well?
Whatever action you take, be sure to communicate effectively with your employees. Many employees don’t know that a state’s legalization of marijuana does not prevent an employer from testing workers for marijuana use and firing those who test positive. In addition, discuss how marijuana can affect employees’ performance in the workplace and how long marijuana stays in a person’s system. Finally, train your supervisors to recognize signs of substance abuse and teach them how to react to those signs.
In Colorado, the legalization of marijuana actually led to more companies testing their employees for marijuana. According to the Denver Post, one in five Colorado employers implemented more stringent drug-testing policies following the passing of Amendment 64 (which outlined the state’s new drug policy for cannabis) in 2012. Many of these employers are concerned about productivity, safety, and drugged driving,
While you may change your company’s drug-related policies based on your state’s legalization of recreational and/or medical marijuana, you are not required to do so. To create an effective system within your workplace, however, we do urge you to (1) stay on top of your state’s laws regarding marijuana, (2) review your company’s policy regularly, and (3) clearly communicate and enforce your company’s drug policy.
Speaking of which, if you’re looking to implement a drug-free workplace program through drug and alcohol testing, contact Tomo Drug Testing. Based in Springfield, St. Louis, and Kansas City, Missouri, and Indianapolis, Indiana, we offer customized solutions to make drug testing simple, and our nationwide network of clinics and providers allows Tomo Drug Testing to be available anytime, anywhere. For a free needs analysis, give us a call today at 1-888-379-7697 or contact us online. We would be happy to help!