Because the laws governing the possession and use of marijuana for medical and recreational purposes are changing, we thought this brief guide might be of use to readers.
According to Danielle S. Urban, a partner in the Denver office of Fisher & Phillips LLP, representing employers nationally:
Marijuana remains a Schedule I controlled substance under federal law. If you are an employer subject to federal drug-free workplace laws or federal safety regulations such as the federal Department of Transportation regulations you must maintain a drug-free workplace and will need to continue to comply with federal drug-testing and reporting protocols.
Unless you are an employer in a state that explicitly protects medical marijuana users from adverse employment action, such as Arizona or Minnesota, you are free to maintain and enforce zero-tolerance drug and alcohol policies in the workplace, and this includes marijuana used for medical purposes.
According to Urban, employees should start with the following:
Consider workplace policies drug and alcohol policies regarding medical and recreational marijuana prior to being faced with a positive employee test. If you do not have drug and alcohol policies, now is the time to consider putting them in place. If your policies do not specifically address marijuana, update your policies to expressly address how marijuana, including medical marijuana use, will be addressed.
No employer is required to accommodate an employee’s marijuana use at work, nor is any employer required to accommodate employees who may be impaired on the job.
In fact, employers who permit employees to work impaired may be subject to legal liability.
If the employer maintains “zero-tolerance” policies, the employer should take steps to remind all employees of this policy and explicitly state that this includes medical marijuana use. Spell out the consequences for a positive test result. With few exceptions, most employers are not required to accommodate medical or recreational use of marijuana, and are not required to continue to employ employees who test positive for marijuana, even if the employee shows no signs of impairment at work.
Read more of Urban's guide including advice on how to deal with positive tests for employees with a prescription for medical marijuana, what is an employer’s potential legal liability should an impaired employee injure someone else at work, and best practices for employers to consider implementing now.