The Cannabis Conundrum

Why Your Current Drug and Alcohol Policy May Have Gone to Pot

For employers that already have a Drug and Alcohol Policy, the following language should be very familiar:

Employees should report to work fit for duty and free of any adverse effects of illegal drugs or alcohol. This policy does not prohibit employees from the lawful use and possession of prescribed medications.

Just about every drug and alcohol policy contained language such as this, and every employer with such a policy likely believed the policy prohibited their employees from coming to work "high" on marijuana. And until recently, those employers were correct. Now however, due to rampant changes in the laws regarding marijuana, those prohibitions may have gone up in smoke (no pun intended).

As of July 2019, thirty-three states and Washington, D.C. have passed medical marijuana laws; twenty-six states and Washington, D.C. have decriminalized or legalized marijuana possession; and. ten states have passed laws to regulate marijuana like alcohol. Federal law, however, still classifies marijuana as a Class I controlled substance, i.e., an illegal drug.

Although state laws vary about how marijuana will be regarded, employers are still generally free to fire, discipline, or take other adverse action against an employee who uses marijuana at work or shows up to work under the influence of marijuana—even if they need it to treat a medical condition. The states are divided, however, about the action employers can take against employees when it comes to off-duty medical marijuana use. Some of these variations are as follows:

• Some states prohibit employers from discriminating against medical marijuana cardholders or from firing employees for testing positive for off-duty marijuana use;
• Some of these states also require employers to reasonably accommodate an employee who needs medical marijuana to treat a medical condition;
  
• Other states explicitly permit employers to fire employees for off-duty medical marijuana use; and
  
• Some states don't clearly address the issue, but court decisions in several of these states have held that employers can fire employees for off-duty use of medical marijuana.

Given these varying and potentially inconsistent requirements concerning marijuana, employers must be proactive to make certain that their company's drug policy is both compliant with state and federal laws and sustains workplace safety.

Initially, companies must decide if it is in their best interest to have a zero-tolerance drug policy or an impairment-based one. Employers who decide a zero-tolerance drug policy is necessary for whatever reason, will likely need to reference federal law, i.e., that marijuana is an illegal drug, to justify the policy. If the company is not a federal contractor, however, they may need to be prepared for challenges to their policy based on recent changes to many state laws, especially when the state law permits recreational marijuana use without a medical basis.

But other employers may find that switching from a zero-tolerance policy to an impairment-based one affords them the leeway to hire otherwise-qualified employees who may be excluded through blanket drug testing. This is because drug tests can detect the presence of Tetrahydrocannabinol (THC), the active ingredient in marijuana, for several days or more after being ingested. This is especially true if the employee is a frequent user, such as for medical purposes.

There are several steps employers who currently have a drug and alcohol policy or are thinking of implementing one should take to ensure that their policy protects all of the company's interests. These include:

1. Review your state's laws (and the laws of each state in which the company has employees) on the status of marijuana under the law and how medical and recreational marijuana users may be treated in the employment context;
2. Decide whether your company wants to continue to have a zero-tolerance policy with respect to marijuana or change to an impairment-based one in light of the changes in state law;
   
3. Review your drug and alcohol policy to ensure that it clearly explains your expectations regarding impairment on the job, off-duty marijuana use and drug testing to all employees;
   
4. Train your managers regarding any changes in the treatment of marijuana use in the company's drug and alcohol policy, and remind them about the need for confidentiality relating to sensitive employee information—including drug-test results and requests for accommodations for medical conditions for which marijuana is prescribed; and
   
5. Take all necessary steps to ensure that the company is prepared to consistently follow its stated procedures in implementing its drug and alcohol policy.
   

Considering the erratic changes in state law regarding both recreational and medical marijuana use, one thing is certain. How employers treat employees (and applicants) who are marijuana users is only going to become more complicated for employers to deal with as time goes on. Employers who review and revise their drug and alcohol policies now will be a step ahead when these inevitable complications arise. Call Excelerator if you need assistance dealing with the cannabis conundrum. We can help!

[i] https://www.mpp.org/issues/legislation/key-marijuana-policy-reform/
[ii] https://www.nolo.com/legal-encyclopedia/state-laws-on-off-duty-marijuana-use.html