LEGALIZED MARIJUANA – ARE YOUR EMPLOYER RIGHTS UP IN SMOKE?

By June 6, 2018 July 9th, 2018 Blog, Newsletter

Legalized marijuana changes virtually nothing in the workplace. Great news!

Most of the United States now has laws that legalize the use of marijuana in one form or another. Some states have very limited medical compassionate care use, and 9 states have legalized marijuana for recreational use. Even though many states have legalized marijuana in some form, it is still illegal under federal law. This fact is important for organizations with safety-sensitive positions, where the health and safety of employees and clients are paramount.

The HR Hotline receives dozens of calls each year which include: the employer’s rights to deny usage of any kind, dealing legally with an employee who tests positive for marijuana, the employee who has a doctor’s note with a medical marijuana card allowing medical usage, and “do we have to allow it as an ADA accommodation?” The answer to this last question is typically “no.” Recent court cases that have considered the issue, and have found that the ADA doesn’t require an employer to accommodate an employee’s use of marijuana even if they use the drug under a prescription and their marijuana use is lawful in the state where they work.

We receive a numerous from concerned Trust members wanting to understand the implications of newly enacted laws allowing recreational marijuana use on their organizations, and whether this now means they can’t enforce their Drug-Free Workplace policies.

The good news is that overwhelmingly the states with medical and recreational use laws have provisions that protect organizations that maintain (or will implement) a Drug-Free Workplace. Those provisions clarify that the new laws will not interfere with the organization’s right to keep a drug and alcohol-free workplace, nor will they require the organization to accommodate marijuana use or affect the organization’s ability to maintain policies prohibiting the use of marijuana by employees. Organizations are free to continue and enforce any zero-tolerance drug policies, especially for those positions that must ensure the health and safety of their clients.

Your workplace drug policies will be critical in maintaining and enforcing your Drug-Free Workplace. Make sure that employees know that disciplinary action, which may include termination of employment, will take place if someone tests positive for marijuana. Be aware of your current policy and what it says regarding drug testing and verify that your drug testing policies are legal in your state.

The U.S. Department of Labor gives us some general guidance:

Under the Rehabilitation Act of 1973 and the ADA (Americans with Disabilities Act of 1990) employers were given the right to prohibit the illegal use of drugs and alcohol in the workplace. Testing does not violate the ADA for illegal drug use, and marijuana is still illegal under federal law.

The Bottom Line

We encourage you to review your current policies to make sure you are in compliance with your local laws and are also clear with your employees what your policies entail in regard to drug testing and the consequences of testing positively for any drugs. Consider including language dealing with legal off-duty conduct and the implications of participating in off-duty recreational marijuana use while off duty. Don’t forget that if your organization receives any federal grants, contracts or funds, your organization must abide by the Drug-Free Workplace Act or risk losing funding. Any revisions of, or adoptions to, your policies and procedures should be reviewed by a labor and employment law attorney licensed in your state.

Don’t hesitate to contact us for sample policies and/or assistance on addressing issues related to drug use in the workplace, or anything else HR related. Call us at (800) 358-2163 or email us at hrservices@501c.com. HR Services is one of the many benefits of your 501(c) Agencies Trust membership.

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