What Marijuana Legalization Means for Your Drug-Free Workplace Policies

by JD Supra Perspectives
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Drug-free workplace policies are in place to help ensure that employees come to work ready and able to work, and that they don’t endanger others while they are working. But beyond that, the issues become more complex, and sometimes more difficult to resolve...

Colorado and Washington both recently legalized recreational marijuana use. But loosening the reins on marijuana is a trend that is not isolated to Colorado and Washington. Despite the fact that use remains illegal at the federal level, in the past 18 years, 20 states and Washington, D.C., have passed laws permitting use of marijuana for medical reasons.

So how do these laws impact workplace policies – like your drug-free workplace policy?

The good news for employers is, although these laws legalize marijuana for recreational and medical use, they don’t require employers to permit drug-use in the workplace or tolerate employees who report to work under the influence. When employees walk onto the job, they become an employer’s responsibility; use that impacts an employee’s ability to do their job, quickly and legitimately becomes a concern for the employer.

So just like alcohol—which is also legal—employers have a right to keep the workplace safe, and prohibit employees from coming to work under the influence. Drug-free workplace policies are in place to help ensure that employees come to work ready and able to work, and that they don’t endanger others while they are working.

But beyond that, the issues become more complex, and sometimes more difficult to resolve. For multi-state employers, the issue is even more multifaceted. Reconciling varying state laws on everything from legalization, permitted use and lawful drug testing is a challenge.

There are many issues that employers must consider and many questions they should be prepared to answer for their employees. This list below highlights some of the questions employers should be thinking about:

  • Have you reviewed your drug-free workplace policy and updated or revised how you define unlawful drugs? When it comes to marijuana, what will you prohibit—any detectable amount?
  • Do you have a drug testing policy in place and has it been legally reviewed to ensure compliance with state law? Do you differentiate between testing positive and being under the influence?
  • Have you communicated your policy to all employees and clearly stated what is expected of them?
  • Do you provide employees with training?
  • Do managers understand how to properly identify employees under the influence, and do they know how to handle the reasonable suspicion drug testing process?
  • Have you considered how you will deal with positive test results knowing that traces of marijuana can remain in the system long after actual use? Will your processes vary if use is recreational vs. for a legitimate medical use?
  • If you have a zero tolerance policy, how will you deal with employee recreational use that is permitted by law? Will you look to federal law to justify a true zero tolerance policy? Are you an organization that is required to abide by federal law?
  • Are your employees in a state where marijuana use is permitted and state law protects employees from termination for engaging in lawful off-duty conduct?
  • Have you trained your managers about confidentiality relating to sensitive employee information—including drug testing results and requests for accommodations for medical conditions where marijuana is prescribed (especially under state law)?
  • Have you familiarized yourself with state disability laws that may prohibit discrimination against employees or applicants who use marijuana for medical reasons?

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[Ingrid Fredeen has been specializing in ethics and legal compliance training for more than 8 years. She has been the principal design and content developer for NAVEX Global’s online training course initiatives utilizing her more than 18 years of specialization in employment law and legal compliance.

JD Supra's new Law Matters series asks experts for their quick take on popular news of the day, and specifically how such matters affect people in their personal and professionals lives. Stay tuned for other posts in the series.]

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