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Advice on workplace drug policies in states where marijuana is legal

Advice on workplace drug policies in states where marijuana is legal

20 states and the District of Columbia permit the medicinal use of marijuana, and two states have legalized the recreational use of marijuana. Thirteen additional states currently have pending legislation to legalize medical marijuana. State legislatures have typically provided very little guidance to employers, who are left trying to figure out what their obligations under the law might be. Here is some advice to help.


Do decide how you will handle employee use of marijuana prior to being faced with a positive drug test

Employers should be proactive and decide how they will handle employee marijuana use before confronted with an issue. Under federal law, marijuana use, even for medical purposes, is still illegal. If employers contract with the federal government, are subject to the Drug-Free Workplace Act, or have employees subject to federal regulations such as Department of Transportation regulations, they will need to ensure that the workplace is in compliance with federal law, regardless of state law. Most states that permit medicinal or recreational use of marijuana do not require employers to accommodate employee use, and many employers consequently have continued zero-tolerance policies. Others employers, fearing that they may have a difficult time finding or retaining employees, may decide to have less restrictive policies. Regardless of their position, employers should carefully consider the risks and challenges and determine which course of action is best for their workplace.

Do develop policies or make sure current policies are up-to-date

Employers should have policies related to drug and alcohol use in place so that all employees know what is expected of them at the outset of their employment. Having clearly articulated policies also helps to ensure that employer policies are consistently administered by management.

Do remind employees of its policies related to marijuana use

Many employees are surprised to learn that they can be fired for testing positive for marijuana, even where state law permits recreational or medicinal use. To avoid unpleasant surprises, savvy employers should clearly explain their policies toward positive drug tests, including marijuana.

Do treat positive marijuana tests consistently

Employers should determine how they will deal with positive drug tests at the outset. Employees who test positive for marijuana, or any other prohibited substance should be treated consistently in terms of discipline to avoid claims of discriminatory treatment.

Do be alert to possible disability issues

Before taking any disciplinary action against an employee who acknowledges marijuana use for a medical condition, employers should consider discussing other possible accommodations with the employee, which may be considered under federal or state law. Although current marijuana use is not protected under the Americans with Disabilities Act, time off for rehabilitation for substance abuse may be protected. Employers may also want to consider offering leave for an employee who claims to need marijuana for treating a short-term medical condition, such as chemotherapy.


Do not discipline employees for suspected or known drug use; take action based only on a positive drug test

To ensure that all employees are treated consistently, and to avoid discrimination claims, make sure that you discipline employees based on the results of a positive drug test only. It is unwise to take disciplinary action based on rumors, hearsay or even claimed use without evidence of a positive drug test.

Do not permit employees to possess or use marijuana in the workplace

Even in states that permit medicinal or recreational use of marijuana, employees have no legal right to use or possess marijuana at the workplace. Not only might such use violate federal law, but it puts employers at risk for unsafe workplace or negligent supervision claims from other employees, among other claims.

Do not allow impaired employees to work

It probably goes without saying, but just as a prudent employer would not permit an employee to come to work intoxicated, employers should not permit employees to work while impaired from marijuana use. Impaired employees are a risk to themselves and their co-workers, clients, and others, and employers who knowingly permit an impaired employee to work may be liable for any risks created by the impaired employee.

Do not permit individual managers to develop their own policies regarding marijuana use

The company as a whole should have consistent drug and alcohol policies to ensure that the company is treating all employees fairly, consistently, and in a non-discriminatory manner. Where policies are consistently enforced and administered, employees are less likely to complain that they were discriminated against or treated unfairly.

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With few exceptions, employers are not required to accommodate an employee’s use of medicinal marijuana, and neither Colorado nor Washington require an employer to accommodate an employee’s recreational use of marijuana. Employers are advised to have a clear policy, ensure employees are aware of the policy, and be sure the policy is consistently enforced.

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Danielle S. UrbanPartner

Danielle Urban has a national practice representing a wide range of employers. Her practice involves advice and counsel and representation of employers in wrongful termination, employment discrimination and harassment, Title VII, Family Medi...

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