In November 2014, Alaska, Oregon and the District of Columbia joined Colorado and Washington state in legalizing the use of recreational marijuana. Twenty-one other states have also legalized the use of medical marijuana.
The changing legal and social acceptance of marijuana use can create uncertainty for companies when creating and enforcing workplace drug policies. Understanding the legal status of marijuana use, as well as being aware of pending court cases regarding marijuana in the workplace, can reduce the uncertainty.
The use of marijuana, which is classified as a Schedule I substance under the Controlled Substances Act, is prohibited by federal law. However, many states have legalized medical and/or recreational marijuana.
In general, workplace drug policies can still maintain a zero-tolerance stance for marijuana use and impairment in the workplace. However, you should consult legal counsel before terminating an employee based on marijuana use, especially if medical marijuana is legal in your state and/or the employee tested positive for the drug but did not show signs of impairment.
Depending on the laws in your state, you may have to consider the following:
• Anti-discrimination laws – If your state allows medical marijuana, you may also have to navigate medical marijuana antidiscrimination regulations.
• What constitutes impairment – If an employee tests positive for delta-9-tetrahydrocannabinol (THC), the primary active chemical in marijuana, but is not actually impaired in the workplace, you may or may not have justification for termination, depending on your state’s laws.
Thus far, courts have generally upheld employers’ rights to zero-tolerance drug policies. However, pending cases and new laws could change that, so proceed with caution when determining your policy for dealing with positive drug tests and marijuana use, especially when dealing with medical marijuana use in states that have legalized medical marijuana.