Medical Marijuana in the Workplace
With so many states legalizing medical and/or recreational marijuana now, employers are wanting to know to what their rights are to discipline or terminate. Federally, possession of marijuana is still illegal. As employers, do we follow our state or federal guidelines?
The states that have legalized medical marijuana require that the participants in the program apply for a medical card through a physician and be approved in order to possess or grow a limited amount of marijuana. So the question remains as an employer can you discipline or terminate an employee for testing positive for marijuana? Some states say yes you can while others say no you cannot.
Not all states have written in their interpretation of what employers can expect while others have. If your state has not interpreted this for you, you may have to dig deep to make sure you end up compliant with your state. One thing that employers have to their advantage is that marijuana use whether it is medical or not is still federally illegal (Deitchler, 2015). With all the new laws around medical marijuana, it is important for employers to have a well written policy surrounding their stand on it (Doughterty, 2016).
If your state has legalized medical marijuana you cannot discriminate against a person for being a cardholder. When this article was written only three states protected against a positive drug test if the person is a medical marijuana cardholder. This can pose a problem for employers in this state as it is hard to prove impairment on the job. The most common used testing for marijuana use is a urine type test that cannot show impairment (Becica, 2016). Some states are even allowing unemployment claims for medical card holders if they are terminated due to a positive marijuana test result (Deitchler, 2015).
If you’re an employer with a zero-tolerance policy and not in one of the three states that have already addressed this then you have free reign to hire, fire, or discipline for any positive results whether they have a medical marijuana card or not. There are bills in several states that would stop employers from being able to fire employees unless they can prove impairment on the job (Becica, 2016).
The next widely asked question is if under the Americans with Disabilities Act (ADA) you have to provide reasonable accommodations for medical marijuana users who use it during hours that they are not at work, such as, passing a drug test.
As of April 2016 employers do not have to accommodate medical marijuana users under the American with Disabilities Act (ADA). In the future this may change as different cases are being evaluated. It may be said that an employee has to be accommodated by being able to use marijuana during non-work hours that do not affect their daily duties during work hours. Stay tuned for the outcomes of pending cases (Becica, 2016).
As medical marijuana becomes legal in more states, employers will need to pay close attention to both federal and state laws regarding this issue. Employers will also need to take into consideration case laws in their state regarding medical marijuana and see how the courts rule on each case. As more states legalize this and employers will need to adjust their policies and find drug testing facilities that can differentiate between currently being under the influence or having used marijuana outside of work hours.
Employers should continue to enforce their drug free policies and with good reasons such as safety. Short term marijuana effects can play a role in the safety of other employees and themselves with slower response times and impaired memory and thinking skills (Doughterty, 2016). Every year, 4,340 fatalities and 3.3 million injuries occur in the workplace in the United States. I think we will see this number continue to rise as more people participate in their states medical marijuana programs. The Occupational Safety and Health Act (OSHA) was passed in 1970, with the goal of providing a safe and healthy work environment for all US workers (Dias, 2011). With all of the rules and regulations of OSHA and safety in general it is very important to know your rights to implement testing and discipline as an employer and to keep all of your employees safe. I hope that in the near future OSHA will begin to focus on the medical marijuana aspect of safety and hopefully provide some training for employers on what to be on the lookout for in situations where an employee may have been “medicating” before they go into work.
All states should review their policies especially prescription drug use in the coming years as this issue is brought more to light. I think as more cases go to trial and judges are given more opportunity to interpret the laws, we could see many changes coming in the future.
Employers should be weary of the decisions and precedents they set in regards to medical marijuana policies as far as discrimination and disability. Employers should also make sure to follow their states laws on this subject and follow it closely as it changes.
References:
Atterberry, R. (2015, September 18). Marijuana in the Workplace: A Hazy Issue for Employers. Retrieved from: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/marijuana-hazy-issue.aspx
Becica, I. (2016, April 20). “Up in Smoke – Are Employers Required to Accommodate Medical Marijuana Use?” Retrieved from: http://www.hrlegalist.com/2016/04/up-in-smoke-are-employers-required-to-accommodate-medical-marijuana-use/
Deitchler, D. (2015, April 15). The workplace and medical marijuana: Employer guidelines for navigating the legal haze. Retrieved from: http://www.insidecounsel.com/2015/04/15/the-workplace-and-medical-marijuana-employer-guide
Dias, L. (2011). Human resource management. University of Minnesota Libraries Publishing edition. Minneapolis, MN
DiNome, J., Haverstick, A., & Perkins, H. (2014, December 2). Medical Marijuana and the Workplace: What Employers Need to Know Now. Retrieved from: http://www.forbes.com/sites/theemploymentbeat/2014/12/02/medical-marijuana-and-the-workplace-what-employers-need-to-know-now/#45db3456b910
Doughterty, T. (2016, February 1). Marijuana Use and Its Impact on Workplace Safety and Productivity. Retrieved from: https://ohsonline.com/articles/2016/02/01/marijuana-use-and-its-impact-on-workplace-safety-and-productivity.aspx
Saade, R. & Vasquez, J. Medical marijuana laws vs. the drug-free workplace: Can the two co-exist? Retrieved from: http://www.seattlebusinessmag.com/business-corners/workplace/medical-marijuana-laws-vs-drug-free-workplace-can-two-co-exist
With so many states legalizing medical and/or recreational marijuana now, employers are wanting to know to what their rights are to discipline or terminate. Federally, possession of marijuana is still illegal. As employers, do we follow our state or federal guidelines?
The states that have legalized medical marijuana require that the participants in the program apply for a medical card through a physician and be approved in order to possess or grow a limited amount of marijuana. So the question remains as an employer can you discipline or terminate an employee for testing positive for marijuana? Some states say yes you can while others say no you cannot.
Not all states have written in their interpretation of what employers can expect while others have. If your state has not interpreted this for you, you may have to dig deep to make sure you end up compliant with your state. One thing that employers have to their advantage is that marijuana use whether it is medical or not is still federally illegal (Deitchler, 2015). With all the new laws around medical marijuana, it is important for employers to have a well written policy surrounding their stand on it (Doughterty, 2016).
If your state has legalized medical marijuana you cannot discriminate against a person for being a cardholder. When this article was written only three states protected against a positive drug test if the person is a medical marijuana cardholder. This can pose a problem for employers in this state as it is hard to prove impairment on the job. The most common used testing for marijuana use is a urine type test that cannot show impairment (Becica, 2016). Some states are even allowing unemployment claims for medical card holders if they are terminated due to a positive marijuana test result (Deitchler, 2015).
If you’re an employer with a zero-tolerance policy and not in one of the three states that have already addressed this then you have free reign to hire, fire, or discipline for any positive results whether they have a medical marijuana card or not. There are bills in several states that would stop employers from being able to fire employees unless they can prove impairment on the job (Becica, 2016).
The next widely asked question is if under the Americans with Disabilities Act (ADA) you have to provide reasonable accommodations for medical marijuana users who use it during hours that they are not at work, such as, passing a drug test.
As of April 2016 employers do not have to accommodate medical marijuana users under the American with Disabilities Act (ADA). In the future this may change as different cases are being evaluated. It may be said that an employee has to be accommodated by being able to use marijuana during non-work hours that do not affect their daily duties during work hours. Stay tuned for the outcomes of pending cases (Becica, 2016).
As medical marijuana becomes legal in more states, employers will need to pay close attention to both federal and state laws regarding this issue. Employers will also need to take into consideration case laws in their state regarding medical marijuana and see how the courts rule on each case. As more states legalize this and employers will need to adjust their policies and find drug testing facilities that can differentiate between currently being under the influence or having used marijuana outside of work hours.
Employers should continue to enforce their drug free policies and with good reasons such as safety. Short term marijuana effects can play a role in the safety of other employees and themselves with slower response times and impaired memory and thinking skills (Doughterty, 2016). Every year, 4,340 fatalities and 3.3 million injuries occur in the workplace in the United States. I think we will see this number continue to rise as more people participate in their states medical marijuana programs. The Occupational Safety and Health Act (OSHA) was passed in 1970, with the goal of providing a safe and healthy work environment for all US workers (Dias, 2011). With all of the rules and regulations of OSHA and safety in general it is very important to know your rights to implement testing and discipline as an employer and to keep all of your employees safe. I hope that in the near future OSHA will begin to focus on the medical marijuana aspect of safety and hopefully provide some training for employers on what to be on the lookout for in situations where an employee may have been “medicating” before they go into work.
All states should review their policies especially prescription drug use in the coming years as this issue is brought more to light. I think as more cases go to trial and judges are given more opportunity to interpret the laws, we could see many changes coming in the future.
Employers should be weary of the decisions and precedents they set in regards to medical marijuana policies as far as discrimination and disability. Employers should also make sure to follow their states laws on this subject and follow it closely as it changes.
References:
Atterberry, R. (2015, September 18). Marijuana in the Workplace: A Hazy Issue for Employers. Retrieved from: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/marijuana-hazy-issue.aspx
Becica, I. (2016, April 20). “Up in Smoke – Are Employers Required to Accommodate Medical Marijuana Use?” Retrieved from: http://www.hrlegalist.com/2016/04/up-in-smoke-are-employers-required-to-accommodate-medical-marijuana-use/
Deitchler, D. (2015, April 15). The workplace and medical marijuana: Employer guidelines for navigating the legal haze. Retrieved from: http://www.insidecounsel.com/2015/04/15/the-workplace-and-medical-marijuana-employer-guide
Dias, L. (2011). Human resource management. University of Minnesota Libraries Publishing edition. Minneapolis, MN
DiNome, J., Haverstick, A., & Perkins, H. (2014, December 2). Medical Marijuana and the Workplace: What Employers Need to Know Now. Retrieved from: http://www.forbes.com/sites/theemploymentbeat/2014/12/02/medical-marijuana-and-the-workplace-what-employers-need-to-know-now/#45db3456b910
Doughterty, T. (2016, February 1). Marijuana Use and Its Impact on Workplace Safety and Productivity. Retrieved from: https://ohsonline.com/articles/2016/02/01/marijuana-use-and-its-impact-on-workplace-safety-and-productivity.aspx
Saade, R. & Vasquez, J. Medical marijuana laws vs. the drug-free workplace: Can the two co-exist? Retrieved from: http://www.seattlebusinessmag.com/business-corners/workplace/medical-marijuana-laws-vs-drug-free-workplace-can-two-co-exist