by Laura Pokrzywa
With all the hubbub surrounding our nation’s President-elect, you may have missed a few other results from last week’s election. For example, voters in seven states elected to approve new marijuana laws in their state. That brings the total of states with medical marijuana laws to 28 (plus the District of Columbia), now to include Arkansas, Florida and North Dakota. In addition, voters in California, Maine, Massachusetts and Nevada elected to allow recreational use of marijuana. They join Alaska, Colorado, Oregon and Washington with similar laws.
As Renee Mielnicki pointed out in her August 2015 blog, Legalized Marijuana and the Workplace, despite state laws changing, marijuana remains a banned substance under the federal Controlled Substances Act. In fact, many federal regulations that govern workplaces, including Department of Transportation regulations, OSHA regulations, the Drug Free Workplace Act of 1988 (applicable to some federal contractors and some organizations receiving federal funding) and the Americans with Disabilities Act (ADA), will continue to override any state laws that may allow medical or recreational use of marijuana.
In her article, Mielnicki goes on to say, “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 wer
e not ‘under the influence’ when the test was given and who argue some exception should be made.” That issue may be addressed by a new technology currently being developed. Breath detection devices are showing promise as a more accurate means of detecting recent use of THC, the compound in marijuana that causes intoxication. Unlike the blood, saliva and urine tests currently being used, this method would detect use within the two hours prior to testing. However, breath testing is best suited for detecting THC that has been ingested through smoking of marijuana. THC that has been consumed as a food product is not currently detected by this new method, but researchers are working on improvements.
In the meantime, your drug testing policy can prohibit the use of drugs that are illegal under federal law, whether or not your state has legalized recreational or medical use. It should also clearly state that any positive test will be considered a violation of the policy, rather than using the standard of “being under the influence”. As Mielnicki explains in an April 2016 blog article, “We always recommend that employers use independent certified laboratories to conduct drug tests. A simple certification of a positive marijuana test from the lab would then result in a drug policy violation. An ‘under the influence’ analysis makes it too 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. You can easily cut that argument off in your policy by changing your violation standard.”
The use of medical marijuana has created a lot of questions related to reasonable accommodations under the ADA, a law that was enacted long before the legalization of medical marijuana 
was being considered. For example, if a doctor has recommended or prescribed the use of a marijuana product to treat a medical condition that qualifies as a disability under the ADA, is the employer required to accommodate that drug use by disregarding their existing drug testing policy? For now, it seems that employers can continue to enforce their drug testing policy based on federal law, regardless of what state law may allow. However, that will be an issue to watch as the courts begin dealing with more cases related to this messy intersection of laws.
If you have questions about drug and alcohol policies or any HR issues, please send us an email at and we will be happy to help.
Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.
