Medical Marijuana in the Workplace

Employers have been dealing with complicated marijuana laws for many years now, and the guidelines are only becoming more difficult to navigate as more states add employment protections and change marijuana laws.

Here are a few key items employers need to know about marijuana in the workplace.

Expanding Legalization of Marijuana

Marijuana use is still illegal under federal law. However, 33 states and Washington, D.C. allow medical use. On Jan. 1, Illinois became the 11th state to legalize recreational marijuana use, and employers are trying to understand what these new laws mean for their businesses. This year, even more states, including New York, are expected to approve recreational marijuana use.

However, marijuana is still considered a Schedule 1 drug, or substances have a high potential for abuse. They currently have no federally accepted medical use in treatment in the United States, and there is a lack of accepted safety for use of the drug or other substance under medical supervision.

If a person receives a drug test and the result is positive for THC, it is reported as such even if the individual has a medical marijuana card. Remember though, medical marijuana is just a referral, not an actual prescription.

Marijuana While at Work

In the current 11 states, plus D.C., that allow the use of recreational marijuana, employers can still ban its use while on the job.

Companies can put policies in place that prohibit the drug’s use and possession while at work and can also prohibit employees from being impaired by marijuana while at work, even if they used the drug hours or days prior.

Some states allow employers to implement employment policies that prohibit the use of marijuana completely, and they don’t have to make accommodations for any employee use of marijuana, no matter what the circumstance.

On the other hand, Nevada now has a law in place barring employers from considering a pre-employment marijuana test result, and a New York City law prohibits employers from conducting pre-employment marijuana tests at all. Both laws have exceptions for safety-sensitive positions and jobs regulated by federal programs that require drug testing.

Medical Marijuana Registered Patients

When providing drug test results to the employer, if a person tests positive for THC, the Medical Review Officer (MRO) can access the state registry to see if the person holds a current medical marijuana card. However, the MRO cannot say the employee’s drug test is “clear” or “negative”, but they can make a notation that the person does have a med marijuana card on file, and then it is up to the employer to decide from there. The individual is also encouraged to inform the employer if they have a medical marijuana card.

More states are passing laws that prohibit employers from discriminating against employees who have medical marijuana referrals.

Whereas, states such as Alaska, Arizona, Delaware and Minnesota state laws prohibit employment discrimination against qualified medical marijuana users, some states, such as California, Colorado, Michigan, Montana, Ohio and Oregon can terminate employees who test positive for marijuana, even if the use was prior to being at work and for a medical reason.

Although marijuana use is not covered by the federal Americans with Disabilities Act, employees may be able to bring state-law discrimination claims. Courts in Massachusetts and Rhode Island, for example, have allowed such claims in recent years, though older court decisions in California and Colorado dismissed state-law claims as pre-empted by federal laws prohibiting marijuana use.

Implementing Company Policies

Although marijuana use is still illegal at the federal level, all companies’ drug testing and screening policies are required comply with all relevant laws in their state(s).

Here are a few different scenarios and how to comply:

1. In states that cover medical marijuana patients under disability laws – employers should confirm whether positive drug tests are connected to medicinal use before making employment decisions.
2. If a worker seeks an accommodation for medical use – employers should ensure that the employee has the appropriate medical marijuana referral and will not use marijuana or be impaired while working.
3. In states that have legalized marijuana use for medical purposes – employers must comply with federal and state laws and provide employees with a safe and productive workplace

We recommend that every company create a detailed policy to address how they want to handle this type of situation. We also suggest that they consult with legal counsel when creating this policy. If an employer has a policy that outlines what employees can expect, they will be better protecting themselves from any possible issues that may arise. Workplaces also should be careful not to discriminate against people with disabilities, who have referrals for medical marijuana.

Each employer’s policy would be unique and specific for that company and its different job categories. This is because some jobs have a higher risk of injury and therefore require more liability protection than others. For example, roofers are more likely to sustain an injury than an office worker. We encourage our clients to work with Workers Comp to help create the best policy for their company.

NMS Management Services offers Drug Screening and Alcohol Testing programs globally. Our services include collections (in-house and mobile), MRO, account management, and electronic reporting. Our collectors are SAMHSA certified and trained to collect urine, hair, oral fluids and breath alcohol tests. For more information on our screening and testing services, contact us today.