Tuesday March 1st, 2016
The move to legalize or decriminalize marijuana use continues to gain traction state by state. For employers, it can seem disconcerting. What effect will all of this change have on the zero tolerance policies, drug-testing programs, and workplace safety strategies that are already established in the workplace?
As it stands right now, the answer to that question is: not much.
For starters, marijuana is considered a Schedule 1 substance under the federal Controlled Substances Act. That makes any possession, use, or distribution of it a crime.
It is true that many states have taken steps to allow the use of marijuana in certain cases. Twenty-three states now allow the use of medical marijuana. In four states—Alaska, Colorado, Oregon, and Washington—even recreational marijuana use is lawful. Many states have moved to decriminalize marijuana use, which means that individuals found in possession may not be punished to the extent that they once would have been.
But here’s the thing about these state laws: Most of them don’t address the employer-employee relationship. The handful that do—fewer than half of the state laws that allow medical marijuana use—simply require accommodation of employees’ medical needs, but they don’t necessarily prevent employers from taking adverse action for onsite drug use, possession, or influence.
Of course, where laws are reluctant to go, courts often rush in. But even in the courtroom, the message has been clear: Workers can still be fired for violating company drug policies, and state laws don’t change that fact.
Even in Washington, Oregon, and Colorado—the three states with perhaps the most liberal marijuana use laws on the books—landmark court cases have consistently sided with the employer in cases where workers were fired or disciplined due to marijuana use or due to a positive drug test. When safety-sensitive positions are at stake, the consideration of employers’ rights gains even more credence.
Furthermore, because federal law treats marijuana as a criminal substance that has no acceptable medical use, medical marijuana users are not protected under the Americans with Disabilities Act. Courts have consistently ruled that employers do not need to accommodate the demands of medical marijuana users under the ADA—even in states where medical marijuana use is legal. However, employers should be aware of accommodation language in their state laws regarding medical marijuana use.