It may not exactly be the re-dawning of the Age of Aquarius, but it is indeed a new dawning of the Age of Marijuana. And while it may cheer the spirits of those who benefit from medical marijuana and a few well-chosen others, it isn’t exactly giving a high to the nation’s employers.
There is no question that marijuana has achieved new respectability. Once considered the devil’s weed from the days of “Reefer Madness” and later the drug of rebellion of the late 60’s and early 70’s, marijuana’s renaissance today is based on the belief that it is medically beneficial for many and/or relatively harmless for most others.
Twenty states (including Michigan) and the District of Columbia have now decriminalized possession of marijuana for medical use. Washington and Colorado now allow recreational use of the drug. And some other states have decriminalized marijuana or decriminalized possession of a small amount of it.
So what does a company with a commitment to keep a safe and drug-free workplace do in order to maintain that commitment in light of these many laws permitting this new form of drug use? The primary answer is very simple: The company need change nothing in its basic anti-drug policies. That’s because there is nothing in any of these laws that requires an employer to allow marijuana use on the premises or to tolerate an employee working under the influence of marijuana.
As in the case of alcohol or cigarettes, just because something is legal does not mean an employee is required to allow it in the workplace if it is deemed unsafe. And companies may feel 100% secure using that principle as the rationale for maintaining strong anti-drug policies.
Even further, marijuana remains illegal under federal law. Certain employers subject to Federal Rules and Regulations are required to bar employees who use marijuana in safety sensitive positions. The Federal law in these instances trumps any state law. In addition, the Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for someone with a disability, even if that person is a registered medical marijuana patient. The 9th U.S. Circuit Court of Appeals has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”
So this new dawning of the Age of Marijuana doesn’t sound so bad for the nation’s employers, right? Well, that’s only half the story.
First, THC, the active ingredient in marijuana, is almost impossible to test for in a meaningful manner. THC stays in the body days and even weeks after it has stopped have any effect on the individual. Thus a positive test for marijuana may not indicate that an individual is actually impaired while at work. So what does the employer do with the employee who tests positive? Terminate the employee, give him or her warning, or do nothing?
Further, what should an employer do when someone who is authorized to use medical marijuana tests positive? Connecticut, Maine and Rhode Island have laws prohibiting discrimination against workers based on their status as medical marijuana patients. Arizona and Delaware go even further, barring employers from discriminating against registered and qualifying medical marijuana who test positive for marijuana, with an exception for employees who are shown to be impaired in the workplace.
While the law says you need not reasonably accommodate medical marijuana users, terminating such an employee if you cannot definitively prove he or she is impaired would likely be against the law in Delaware and Arizona, if not in all five states. And what of the employee from a state where medical marijuana or recreational marijuana is legal working in a state where it is not?
All of the above points to the biggest problem of all: the challenge faced by multi-state employers of putting a comprehensive company-wide policy together at all locations. Reconciling all of the conflicting state, federal, and in some cases local laws with one another spells considerable likelihood of inconsistencies, which often have a way of leading to litigation.
So, should you just tune in, turn on, drop out?
Nope. We’ll try to give some pointers next time to help you find your way through the hopefully not too smoky haze on the horizon up ahead.