Employers have been grappling with confusing marijuana laws for many years, and the rules are becoming more challenging to navigate as more states change employment protections.
There are many new improvements with drug-testing and marijuana legislation, making it hard for companies to keep up. In 2020, some places will prohibit employers from testing new hires for weed use or refusing to hire applicants according to a failed pre-employment marijuana test–although there are exemptions for safety-sensitive jobs. This might be a new trend for the coming years.
Here’s what employers will need to know about the changing landscape for marijuana and the workplace in the year ahead.
Allowing Recreational Use Of Marijuana
However, all marijuana use stays illegal under federal law, at least 33 states allow medical use, and 11 of these states and Washington, D.C., also permit recreational use.
In January, Illinois became the 11th state to legalize marijuana use, and companies are still figuring out exactly what the law means for the workplace.
When the act was initially passed, companies expressed concern that they may need to prove that a worker was using marijuana when the worker failed their drug test. Employers also showed concern regarding whether they could conduct random drug testings.
So Illinois authorities approved an amendment clarifying that employers can conduct alcohol and drug evaluations, including arbitrary tests, and may fire, discipline, or refuse to hire a worker who fails.
Despite this employer-friendly amendment, workplace drug policies nevertheless must be both reasonable and nondiscriminatory.
More states are expected to approve–or try to validate–recreational cannabis use. New York Gov. Andrew Cuomo said he is making it a priority.
Prohibiting Pre-Employment Marijuana Drug Testing
Another major trend of 2020 involves restrictions on pre-employment marijuana testing. On Jan. 1, a Nevada law barring employers from considering a pre-employment marijuana test result. Starting May 10, an NYC law will forbid businesses from carrying out pre-employment marijuana tests. Both bills have exceptions for safety-sensitive positions and jobs regulated by federal programs that need drug testing.
Even states that allow companies to refuse to hire job aspirants who fail drug tests may need companies to take specific measures before rescinding a conditional job offer.
Some states have laws restricting employers from discriminating against employees using lawful products while they are off duty. Such laws were passed to defend tobacco consumers from discrimination, but if those laws protect off-duty use of a product that remains unlawful under federal law is ambiguous.
New Laws for Registered Medical-Marijuana Patients
More states are currently passing laws prohibiting employers from discriminating against workers as they’ve authorized medical-marijuana patients or caregivers of patients. In those states, employers could be asked to participate in the interactive process to adapt to medicinal marijuana off duty.
A reasonable accommodation might not be available for a given job. However, companies should make a good-faith attempt to find one, like changing shifts or granting time off while the employee is medicated.
Employers should remember that they don’t have to allow on-the-job use or intoxication, even in states where they can’t refuse to hire or fire a worker for merely being a registered medical-marijuana user. But figuring out how to proceed if an employee has used marijuana varies by state.
For example, in Arkansas, employers may release employees according to a good-faith belief that the employee was impaired by marijuana on company property or during work hours. However, a drug test isn’t sufficient grounds for a good-faith belief.
The employer has to observe something in the employee’s conduct, behavior, or appearance that indicates intoxication or get information from a reliable person about the worker’s inability. A positive drug test could be sufficient to prevent an employee from serving in safety-sensitive professions.
Alaska, Minnesota, Delaware, and Arizona state laws also prohibit employment discrimination against qualified medical-marijuana users. In contrast, companies in some states, such as Colorado, California, Michigan, Ohio, Montana, and Oregon, can fire workers who test positive for marijuana, even if the use was for a medical condition and off-duty.
While many states address these problems within their statutes, state courts have also weighed in. In New Jersey, an employer did not need to waive a post-accident drug test for a worker who had been a qualified user.
Although US works are not covered by the federal Disabilities Act for marijuana use, workers may have the ability to bring state-law discrimination claims. Courts in Massachusetts and Rhode Island have allowed claims in the past few years. However, older court decisions in Colorado and California disregarded state-law claims as pre-empted by federal laws banning marijuana use.
Recreational Cannabis vs. Medical Cannabis
There’s a distinction between cannabis, an activity of choice, and medical cannabis, which are prescribed as a medication to patients who use a medical marijuana card to get cannabis for a variety of conditions outlined under state laws. Some states bring that distinction to the workplace, which might influence employers’ drug policies.
Employers must understand their rights and responsibilities when it comes to drug testing since state laws are evolving. Marijuana remains federally illegal, and companies are generally permitted to have a drug-free office and apply zero-tolerance policies.
It’s essential for you, as a business owner, to know if some of your workers are medical marijuana patients and if your state laws protect their use of cannabis or against the collapse of employer-mandated drug tests.
A company has to be mindful when disciplining medical marijuana consumers. Several states have specific laws protecting medical cannabis patients from employment discrimination. Usually, employers may require drug testing randomly and before employment, so long as there isn’t any discrimination against medical marijuana users [who] are lawfully allowed for medicinal reasons.
Further muddying workplace drug policies is the question of worker morale. Many employees argue that the legal usage of cannabis off the clock should not be grounds for their termination if they fail an employer drug test. Employers will need to bear the workforce’s attitude when making disciplinary decisions associated with drug testing.
Evaluate the Business and Job
So what should companies do in light of these laws? You have to take into account the requirements of the company and any applicable state laws. Federal drivers, contractors, and workers in other safety-sensitive positions may be subjected to drug-free workplace regulations, whereas general office workers may not. Employers who are currently struggling to fill vacant positions may want to relax their standards.
More and more companies appear to be treating marijuana usage like alcohol usage and allowing recreational off-duty usage.
Is Employee Cannabis Consumption Right for Some Companies?
One employer said it benefits his company to permit workers to consume cannabis at the office. IBAKE Denver is an establishment, a cannabis club, and there aren’t any cannabis products available for sale. Owner Steve Nelson Jr., known to employees and clients as Thurlow Weed, stated his company’s unique version lends itself well to permitting workers to consume onsite.
Employee ingestion would help his brand-building efforts as an adult-use consumption club and also establishes a relaxed and inviting atmosphere for guests. Also, allowing consumption on the clock is not right for everybody, especially businesses that are not in the cannabis industry.
It’s not for all companies or all employees. Employers need to take careful consideration of what… your worker will do. Some tasks aren’t OK to perform while high.
Implementing The Right Measures
The attorney’s layout measures that companies should take to make a successful drug policy even in states where regulations are less friendly to doing so, provided that they follow specific guidelines:
- Define the terms” marijuana,” cannabis,” or another derivation of the medication. Simply restricting the use of”illegal drugs” can create ambiguity due to marijuana’s legal status in various jurisdictions.
- State explicitly that the use of marijuana, whether on the job or recreationally, is strictly prohibited.
- Articulate processes and policies, including detailing precisely what the penalties are for failing a drug test.
- Educate employees on health issues relating to marijuana, such as its effects on the body, the duration it can stay to impair physiological and cognitive functions, and the possible influences on workplace safety and performance.
- Include the policy in new-hire and recruiting onboarding substances to ensure notice to the candidate you hire.
- Make sure that you always consistently administer your drug testing program. It’s crucial to conduct drug tests, once a medication policy is adopted. Failure to do so can create a problem for an employer.
If an employee tests positive for marijuana, the recourse available to an employer may vary under state and federal laws. Rest assured that in all the states — even those that have legalized medical marijuana use federal prohibitions continue to apply this prohibit being under the influence of the drug for certain occupations, such as airline pilots and truck drivers.
Additionally, courts have always found that the Americans with Disabilities Act (ADA) currently doesn’t protect an employee from adverse employment actions if they’re discovered to be using marijuana to deal with a disability, even in cases where the employee refrains from using medical marijuana while at work.
The ADA explicitly excuses from its scope the”illegal use of drugs.” It explains that term to include any elements that are illegal under the federal Controlled Substances Act, which still lists marijuana as a prohibited substance. Because of this, employers may terminate an employee who tests positive for marijuana even if that employee is prescribed medical marijuana patient, disabled, and only uses marijuana on his or her own time—and avoid risking liability under the ADA.
Note, however, that under the ADA, if an employee discloses a disability and requests accommodation, an employer must consider reasonable accommodations, which might include transfer to a non-safety sensitive job (in which the marijuana use may not pose a safety concern) or temporary leave during treatment.
While state and federal laws might appear simple when reading in isolation, problems arise when they conflict or overlap with each other, the attorney’s stress. Those companies must be operating in some of the 30-plus states where marijuana is now legal in some form to take the time to review present policies and assess the need for modifications to ensure worker safety and procedures and reduce company risk.