Employers Stand by Their Drug Policies as Marijuana Laws Gain Ground


Marijuana laws are undergoing a quick and radical transformation in the U.S. Currently, 20 states plus the District of Columbia allow the use of marijuana for medical reasons. Two states — Washington and Colorado — have legalized pot for adult recreational use. A recent Pew Research Center survey found that a majority of Americans (54%) support the legalization of marijuana.

In the face of such changes, however, employers are standing their ground when it comes to their drug- free workplace policies, and because marijuana is still illegal under federal law, courts are backing them up. Consequently, employees who believe recreational- or medical-marijuana laws give them free rein to use marijuana when they are off the clock could find themselves out of a job.

Yet, America's increasingly lax attitude towards marijuana has many employers uncertain about how they should apply their drug policies. This dilemma was highlighted recently when a Spokane man lost his job following a news story showing him making the first legal, recreational purchase of marijuana in the city. He was fired after refusing to take a drug test ordered by his employer, who saw him on TV celebrating his purchase. Several days later, however, he got his job back when his employer realized he was not on duty the day of his purchase and therefore would not have been reporting to work impaired.

Marijuana advocates argue that because marijuana can stay in a person’s system for 30 days or more, employers who fail to discipline employees for getting drunk on Friday night unfairly discriminate against those who choose to get high over the weekend. Although courts have previously sided with employers, many are anxiously watching a Colorado case that presents this precise issue.

On appeal before Colorado’s Supreme Court is the case of an employee who lost his job as a customer service representative at a communications company after a saliva test showed he had used marijuana. The employee is a quadriplegic who used marijuana off the clock while under a doctor's care to manage pain and avoid embarrassing spasms. He and his attorney argue that the presence of THC — marijuana’s active ingredient —doesn’t prove that the worker was impaired on the job. The court is expected to issue its decision this fall.

While safety was not at issue in the Colorado case, many employers do risk liability if an impaired worker is involved in a vehicle or workplace accident. Daily marijuana smokers are at a greater risk for accidents, according to a senior investigator at the National Institute on Drug Abuse. And chronic users suffer cognitive deficits that impact their attention and other executive functions.

Evidence also shows that drug use increases healthcare costs, turnover, absenteeism, workplace performance problems and safety issues —all good reasons for employers to keep their drug-free workplace policies in place.

Even though many employers are reluctant to interfere in their employees’ personal lives, they are concerned that more lenient laws and society's more positive views on marijuana may make it harder to find qualified workers who meet stringent drug-testing criteria. Given these considerations, some employers in Washington and Colorado are voluntarily opting to loosen their pot policies.

How strongly employers choose to enforce their drug policies often depends on the industry and safety considerations. However, with more states preparing to liberalize marijuana laws, certain measures can help employers prepare for such changes:

  • Review drug-related policies to ensure they clearly convey what is expected of employees;
  • Consider basing policies on job-performance expectations;
  • Revise policies to clearly indicate that a positive drug test may result in termination of employment, regardless of whether the employee appears to be "under the influence" at work. Employers should enforce violations with clearly stated consequences or disciplinary action;
  • Ensure the consistent application of policies to everyone in the organization; and
  • Train managers to recognize the signs of drug use.

While research shows a sharp decline in drug use among American workers over the past 25 years, those who do use illicit drugs can have a significant negative impact on the workplace. Furthermore, potential liability for drug-related industrial accidents, product defects and workplace injuries makes it imperative that employers take drug-use prevention seriously.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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