Over the last several years, many states have legalized the use of medical marijuana. As these numbers continue to rise, so too will the number of workplace issues that employers face involving medical marijuana. Under federal law, marijuana is classified as a Schedule I drug, which means the drug is considered to have no medical value and has a high potential for abuse. Moreover, possession and use of marijuana is considered illegal.
In direct conflict with federal law, 23 states and the District of Colombia have legalized medical marijuana.
Why is this Important?
This is important for all employers, as federal law and state law are in direct conflict with one another, which creates a level of ambiguity in terms of what constitutes permissible employer and employee action when dealing with workplace issues involving marijuana.
The most recent Colorado Supreme Court ruling in Coats v Dish Network, has clarified employer rights in the state of Colorado. In this case, the Court ruled that a medical marijuana user, who was fired after failing a drug test, will not be given his job back even though the state of Colorado permits the use of medical marijuana for both medical and recreational purposes. The Court took the position that an activity must be lawful under federal law as well as state law. Although this ruling is not binding across all states, it is likely to set the stage for how other states will deal with this issue.
Moreover, while other states continue to define their laws, there are three areas of the law that have been defined and that all employers should be aware of:
- If you are a federal employer, operate under a federal contract, or have federal grants, you are under the jurisdiction of the federal law. A zero tolerance policy is mandatory for the employer and all employees must be provided notification of the guidelines as defined by federal law.
- If you have a zero tolerance workplace drug policy in place, you are not obligated to make medical marijuana accommodations under the ADA and FMLA as both are federal statutes and under federal law marijuana is considered illegal. Use caution in handling these situations to minimize risk and ensure you can demonstrate that adverse employment decisions are based on use of marijuana and not the underlying medical condition.
- At this point, employers in all states excluding Minnesota, Arizona and Delaware, have the right to enforce a zero tolerance workplace drug policy- and hold employees to this policy- regardless of whether or not the individual has a medical marijuana card. Minnesota, Arizona, and Delaware have statutes that expressly prohibit employers from firing an employee for a positive marijuana drug test if that employee holds a valid medical marijuana card.
Four Best Practices
Each state’s medical marijuana laws vary in their scope and terminology. Until the United States Supreme Court provides further, concrete guidance, it is critical that employers are cautious in dealing with workplace issues involving medical marijuana. The following four best practices are recommended:
- Develop a workplace drug policy. It has never been more important to develop a workplace drug policy that explicitly details which drugs are prohibited, what the consequences are if violation occurs, and when and what type of drug tests will be administered.
- Apply your workplace drug policy consistently among all employees to avoid claims.
- Communicate your policy early and often. Workplace drug policies should not only be stated clearly in your handbook, but should also be explained during the new hire orientation process. It may be necessary to state your policy during the hiring process as well.
- Revisit and revise your workplace drug policy regularly. Given that many states are in the process of developing their medical marijuana laws, it is necessary to revisit your company’s workplace drug policy regularly to ensure compliance with the law.
StratEx will continue to monitor this issue. We advise our clients that it is necessary to modify company policies now, and follow these four best practices closely, as we believe workplace issues related to medical marijuana will continue to create challenges for employers in all states. If you are a StratEx HR client, please reach out to your HR Account Manager with any questions you may have on this topic.