Once a policy that typically needed little attention or updating, the legalization of marijuana—even for the limited purpose of medical use—is throwing companies’ drug & alcohol use policies into the spotlight.

Navigating Conflicting State & Federal Laws

Both Colorado and Washington recently passed laws legalizing recreational marijuana use. But loosening the reins on marijuana is a trend that is not isolated to these states.

Despite the fact that marijuana use (both medical and recreational) 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. And in 18 other states the debate over whether to legalize the drug continues, with impacts felt at the federal level.

Just this past week Eric Holder, U.S. Attorney General, found himself under attack from Congress for his agency’s position not to prosecute medical marijuana use in states where it is legal.

Risk of Lawsuits Increases as Legal Landscape Changes 

In light of these developments, it’s important for employers to take a hard look at their drug & alcohol use policies. It is highly likely that one of your locations will face a challenge in the next year requiring them to apply the policy to an employee or applicant who claims to be using marijuana for medical reasons.

Resolving the issue is not always simple, and missteps can open the door for legal challenges.  The National Council on Compensation Insurance cites marijuana use as a top employer concern for this year, citing a spike in workers compensation claims that involve medical marijuana.

Nine Common Mistakes in Drug & Alcohol Use Policies

What should employers look for as the review their policies?  A new legal brief outlines the nine most common mistakes in a drug & alcohol use policy, and how to avoid them. Mistakes include:

• Failing to address recreational and medical marijuana use directly
• A requirement that employees disclose all prescription drug use
• Prohibition of illegal drug use only on duty, instead of at all times

Read the full legal brief, penned by Littler’s Katherine Goetzl.

Taking a Deeper Dive: Aligning Corporate Values With Policies

In addition, employers need to ask themselves tough questions to resolve the legal and values-based questions that will almost inevitably arise around employees recreational or medical marijuana use. I recently penned an article for JD Supra that details ten of these questions, including:

• 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?
• 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?
• 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)?

Pulling It All Together

After you have taken a look at your policy, make sure to engage an attorney who really understands the issues involved and ask him or her to review your revised policy. And once it’s been vetted, ensure that your organization—and your managers—are prepared to address issues that may arise under the policy confidently and properly.