Today, medical marijuana use is legal in thirty-three states, the District of Columbia, and three U.S. territories, with another thirteen states allowing CBD products that have low THC content. Over four million Americans are medical marijuana patients today.
According to an April 2021 Pew Research Center survey, an overwhelming majority of U.S. adults (91%) say marijuana should be legal for medical purposes. Therefore, an overly restrictive policy may mean you lose good employees.
Here are some questions for consideration:
- Should you tighten your policies on drug testing?
- If you choose to have a zero-tolerance drug policy, how do you handle medical use?
- Can you be sued for failing to accommodate an employee who has a medical condition?
When Drug Use is a Safety Issue
Although state laws vary, what is true in every state is that these laws don’t require employers to permit drug use in the workplace or tolerate employees who report to work under the influence. For multi-state employers, it becomes even more confusing as Federal regulations still prohibit marijuana use. For example, Federal Drug and Alcohol Testing Regulations state, it remains unacceptable for any safety-sensitive employee subject to drug testing under the Federal Motor Carrier Safety Administration to use marijuana.
Safety‐sensitive transportation workers include:
- school bus drivers
- truck drivers
- train engineers
- subway operators
- aircraft maintenance personnel
- transit fire‐armed security personnel
- ship captains
- pipeline emergency response personnel
In addition, the Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for someone with a disability, even if that person is a registered medical marijuana patient. And if your company is unionized, you may face issues with drug testing in a unionized workplace.
Drug Policies Protect Yourself and Your Employees
How do you comply with state and federal laws and protect your employees and business?
- First and most importantly, institute a company policy that clearly states your stance on the use of, the possession, or being under the influence of any illegal drug in the workplace. Define unlawful drugs to include the abuse of over-the-counter medication, prescription medication, medical marijuana, and alcohol.
- Know your state’s laws on medical marijuana use and make sure your policies are consistent with state anti-discrimination statutes.
- Communicate your policy to all employees and let them know what is expected of them and how you will deal with infractions.
- Train your managers about confidentiality regarding sensitive employee information—including drug-test results and requests for accommodations for medical conditions for which marijuana is prescribed.
Although employers may need to revise their drug-testing and accommodation policies, no state law requires employers to tolerate on-the-job cannabis use or intoxication.
Throughout 2021 and 2022, it will be really important for employers to keep their eye on the case law as courts continue to interpret employee protections under medical marijuana statutes.
Considerations for Employees
Employees who take marijuana for medical purposes or who are considering doing so should therefore consult their physician, their employer’s human resources department, and an employment lawyer to know their rights. The fact that using marijuana is legal in your state does not necessarily prevent your employer from firing you for using marijuana, even with a valid medical certification. And because the drug can remain in one’s system long after the intoxicating effects wear off, it is essential to know whether your employer can require a drug test and fire you for having THC in your system, even though you did not come to work under the influence of the drug. But, again, this is a complex and ever-changing area of the law, so consulting an attorney in your state who has the most up-to-date information is the best way to protect yourself and your livelihood.