by Renee Mielnicki, Esq.
Call me a lawyer nerd, but I find the impact of the ever expanding state legalization of marijuana on the workplace interesting. Several issues are involved with this subject and I find them all fascinating. If you are an employer in a state where marijuana has been legalized either medically or recreationally, or in some cases both, you may not have thought about what that means as far as your drug testing policy. Let’s take a look.
Currently, there are four states that have legalized marijuana for recreational use: Alaska, Colorado, Oregon and Washington. There are twenty-four states that have legalized it for medical purposes. Despite state law legalization, federal law continues to make the use of marijuana illegal. Moreover, the Department of Transportation, a federal agency that, among other things, regulates drug testing for drivers with certain types of driver licenses, issued a statement reaffirming its prohibition of marijuana while stating it makes no exception to their rules and regulations for marijuana use, even if it’s being used medicinally.
One quagmire that marijuana has always presented for employers is its dissipation rate from the body. For whatever reason, marijuana tends to stay within the body for longer periods of time than any other drug. This has often led to challenges by applicants and employees that they were not “under the influence” when the test was given and who argue some exception should be made. With legalization, I imagine that argument may be made even more. Specifically, employees could challenge a positive test citing legal off duty use.
Well, there are solutions here. Employers can easily draft drug testing policies prohibiting drugs that are illegal under any state or federal law. That takes away the argument that the employee has a prescription or that it’s legal when used off duty since marijuana is still illegal under federal law. In addition, employers can also make it clear that any positive test is still a violation of the employer’s policy rather than making “under the influence” the standard. This addresses the dissipation problem. In other words, we always recommend that employers use independent certified laboratories to conduct drug tests. If the lab certifies the test as positive, that would be the standard for a policy violation, not whether the employee was under the influence. An under the influence analysis makes it easy for those using marijuana off duty to challenge a positive finding by arguing that use may have been weeks ago and therefore should not be cause for a policy violation.
Another issue for consideration is whether an employer has to provide an applicant or an employee who has a prescription for medical marijuana a reasonable accommodation under the American’s with Disabilities Act and make an exception to its drug policy. Most states where medical marijuana is legal have said no to this question since the drug remains illegal under federal law. I recently saw a quadriplegic being interviewed on the national news who was fired after he tested positive for marijuana. He had informed his employer that he had a prescription and asked for an exception to the drug testing policy. The employer refused and terminated the man’s employment. Based upon what I have read, it seems the employer was well within its rights, which makes sense to me. In states where marijuana is legal, I don’t see it as any different as alcohol. Both cause impairment. While off duty use may be legal, on duty use must still be forbidden because it impairs the employee’s ability to do their job safely and effectively.
While states have exempted employees from criminal prosecution under these legalization laws, its seems that no exceptions are currently being made in the employment context. If the feds ever legalize marijuana, the need will probably arise for some type of exception for medical use under the American with Disabilities Act. But that will be tricky given the dissipation rate from the body. You can be sure I’ll be following that issue in the future.
If you have questions about drug and alcohol policies or any HR issues, please send us an email at firstname.lastname@example.org and we will be happy to help.
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