Medical Marijuana in the Workplace

Employers of all industries need to be informed on the latest rules and regulations of drug screening in the workplace. John Mallios, Senior Vice-President, Drug & Health Screening at Sterling shares his insight for HR professionals.

Recognizing that impaired transportation workers represented a significant threat to public safety, the United States Congress passed the Omnibus Transportation Employee Testing ActOpens a new window in 1991 (OTETA) following deadly accidents that had occurred.  Public and private employers in transportation-related industries, such as railroad, aviation, trucking, mass transit, and others were now required to implement workplace testing programs to test their job candidates and employees who would perform specific work functions deemed “safety-sensitive” for the most abused substances of the time, including alcohol and marijuana.

In the early 1990s, many in the United States were unfamiliar with the “medical marijuana” term. The predominant sentiment then was that marijuana was a simple alternative to alcohol. The difference between the two, however, was that adults could legally purchase, possess, and use alcohol.  Not so with marijuana, which was classified two decades earlier as a Schedule I substance under the Controlled Substances ActOpens a new window , holding the substance to be devoid of any valid medical purpose and having a high propensity for abuse.  Hence, illegal to purchase, possess or use marijuana.

Unfortunately, substance abuse continues to be an extremely important social issue, and American employers with safety and financial interests in mind have zero-tolerance policies in place to ensure substance abuse is kept away from their workplaces.  In fact, workplace drug testing positivity rate is at its highest levels since 2004Opens a new window , and the positivity rate for marijuana has increased nearly 17% since 2014.  For federally-mandated drug testing, marijuana positivity has increased nearly 24% since 2014. Particularly since 2012 when Colorado introduced the first recreational use laws, marijuana decriminalization has certainly ushered in new and complex challenges for employers who require drug testing of their job candidates and employees.

Today, more than two-thirds of the United States has medical marijuana use laws on the books (33 states thus far, plus the District of Columbia, Guam, Puerto Rico, and the US Virgin Islands). Ten states plus the District of Columbia also have recreational use laws in place. 

Also Read: The Layoff Payoff: Using Severance Packages to Attract Talent and Protect the Employer BrandOpens a new window

With respect to medical marijuana:

• State laws that have been enacted provide various legal protection for access and use of marijuana by individuals for specific medical conditions, which may vary from state to state. 
• A medical practitioner must authorize an individual for medical marijuana use, who must then register with the state before acquiring and using marijuana in pursuit of a medical benefit.  This authorization may also extend to caregivers to the medical marijuana patient.

Workplace Policy

Today, while some employers are beginning to relax their testing requirements in fear of not properly handling a failed drug test or being accused of discriminating against a medical marijuana user, there are many employers continuing their zero-tolerance policy in fear of the increased marijuana use that would be brought about by marijuana decriminalization. 

It’s important to note that, while it may be unlawful in some states to discriminate against medical marijuana users, employers are not prohibited at the federal or state level from:

• Requiring their workers to be free from the effects of any substances used while working.
• Viewing and treating marijuana as alcohol, prescribed/recommended medication, or any substance that can have impairing effects on the user.

Still, because most states today have decriminalized marijuana to some degree, with varying provisions from state to state, it’s extremely important for employers to know what individual state laws have to say about:

• The rights of medical marijuana users.
• Employer rights and responsibilities with respect to the medical marijuana user and workplace drug testing.
• How positive drug tests may need to be treated.

Policy Considerations

For drug testing that is not federally mandated, state laws governing marijuana must be accounted for in employer policy while balancing policy requirements and expectations against employer objectives for the workplace and public safety.

Below are considerations for employers with respect to their non-federal workplace testing policy:

• Policy should specify that:

  • The central purpose of the employer policy is to ensure workplace and public safety.
  • Marijuana is a substance with potential for impairment in any user and, consequently, may bring about hazard to the workplace or to the public.
  • Employees are continually responsible for their job performance and for ensuring themselves to be free from the effects of any substance used.
  • Certain job functions deemed “at risk” or “safety-sensitive” (as defined by the employer or the state) will subject the job candidate and employee to workplace testing.
  • A confirmed positive drug test result for marijuana may subject the individual to discipline, identical to prohibited use of any substance.
  • For ensuring workplace and public safety, testing will be performed in certain scenarios.
  • Unless specified in state law, on-the-job use of marijuana will not be permitted.
  • Based on job function and at the discretion of the employer, reasonable accommodation for a medical marijuana user may be considered.
     
• Employees performing “at risk” or “safety-sensitive” functions should disclose use of any physician prescribed or recommended substance to the employer (prescription drug or marijuana) that was initiated in advance of working, with a statement from the physician specifying knowledge of the employee’s job functions and determination if use of the substance can affect the individual’s ability to safely perform.
   
• Medical marijuana patients should be required to provide valid evidence of a state-issued medical marijuana card to the employer, as well as state contact information for verifying its authenticity.
   
• A signed acknowledgment of policy receipt with affirmation from prospective and covered employees to abide by all policy provisions and specifications should be obtained by the employer.

In addition to workplace policy, employers should consider:

• Identifying in job descriptions and vacancy notices that a job is “at risk” or “safety-sensitive,” and that job candidates and employees in such a job will be subject to workplace testing.
• Recurring supervisor training in employer policy, particularly surrounding marijuana use and actions a supervisor is authorized to take when impairment is suspected, or when marijuana use has been confirmed.
• Providing educational information to employees covered by the testing policy that includes reminders regarding the employer’s marijuana position in states that provide for medical or recreational use.

As previously stated, state laws governing marijuana must be accounted for in an employer policy. Unfortunately, there’s no one-size-fits-all policy that employers can adopt to navigate the wave of marijuana decriminalization and the individual state requirements that exist.  The employer’s testing policy must be carefully reviewed by qualified legal counsel to support company objectives and interests, and compliance with applicable state laws.  Most importantly, ensuring workplace and public safety must be front and center.

Also Read: All’s not Bleak in the May 2019 U.S. Jobs Report: Findings and AnalysisOpens a new window