Perhaps you’ve revised your drug policy to provide more help and information to employees during the ongoing opioid crisis. What you should and can do in this regard was discussed in a prior blog.

Now, given the growing acceptance of marijuana for medical or recreational use throughout the country, you may want to again revisit your drug policy to make changes where needed for marijuana.

Overview

While marijuana remains a controlled substance under federal law, as of February 2020 the vast majority of states has legalized the use of marijuana for medical purposes (with varying restrictions). Currently 11 states permit its use for recreational purposes.

The legalization for recreational use may be adopted by other states as several are considering legislation at this time. How are employers supposed to respond to marijuana use by employees where it’s legal in their states?

State protection in the workplace

The company’s policy about the use of marijuana all depends on the laws in your state. Issues to consider:

• No discrimination against those using weed for medical purposes. If an employee has a medical marijuana card, you usually cannot discriminate against this employee in the workplace. This includes decisions regarding hiring and firing, but there are exceptions.
• Drug free workplace. If you want to have a drug-free policy, can you do it? Again, it depends on your state. More than a dozen states permit such a policy.

A more complete description of the marijuana laws in your state are posted by O.Berk (a century old packaging company).

Impairment issues

Regardless of state law, you certainly don’t want any employee working while impaired. It can result in accidents, lost productivity, or other problems. For example, if you are in a state where recreational use is legal and an employee who’s used weed during off-duty hours comes to work impaired, can you do something about it?

How do you test for or determine impairment? In many states, having a “reasonable suspicion of impairment” is likely enough to warrant testing.

Reasonable suspicion can be triggered by various factors, including smelling marijuana on an employee or observing questionable behavior (twitching, staggering, slurring speech, and falling asleep). Of course, there could be another explanation for any of these factors, but you can at least test for usage if it is in accordance with your state’s law and your company’s drug policy.

The problem for weed is that testing for marijuana use, unlike alcohol, doesn’t necessarily show impairment at the time of testing. And there’s no standard measurement for what constitutes impairment. What’s a little? What’s a lot?

Your policy can include a statement that refusing a drug test for marijuana use can be grounds for termination. The policy can also state that discipline or termination can be used even if there’s no drug test under appropriate circumstances. Again, check with state law. Your right to run a business safely and efficiently shouldn’t be barred by marijuana laws.

Final thought

This is a very complicated area of employment law and it’s changing all the time. Tread carefully. Be sure to have your drug policy reviewed by an attorney knowledgeable in this area of the law.