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February 12th, 2016 | Sterling

Decriminalizing Marijuana and the Workplace

Decriminalizing Marijuana and the Workplace

Much has changed over the past two decades with respect to marijuana and, with decriminalization now in practically half of the U.S., important questions continue to challenge employers:

  • How should a job applicant’s positive marijuana drug test be treated in a state where recreational use is permitted?

  • Must every employee who has a medical marijuana registration be accommodated?

  • Would it just be easier to stop testing for marijuana?

Let’s remember that marijuana use isn’t any safer for the workplace, public settings or roadways because of decriminalization. In fact, concern over marijuana use should now be greater.

According to the 2014 National Survey on Drug Use and Health (NSDUH), an estimated 22.2 million Americans aged 12 and older are current marijuana users. This corresponds to 8.4% of everyone aged 12 and older, and represents nearly a 38% increase over the previous decade. Within this group over the previous decade:

  • Nearly a 22% increase has been observed amongst 18 – 25 year olds

  • Nearly a 61% increase has been observed amongst 26 year olds and older

Many attribute this marijuana increase to continuing decriminalization. Today, there are 25 jurisdictions that have enacted medical marijuana laws, including:

  • Alaska

  • Arizona

  • California

  • Colorado

  • Connecticut

  • Delaware

  • District of Columbia

  • Georgia

  • Hawaii

  • Illinois

  • Maine

  • Maryland

  • Massachusetts

  • Michigan

  • Minnesota

  • Montana

  • Nevada

  • New Hampshire

  • New Jersey

  • New Mexico

  • New York

  • Oregon

  • Rhode Island

  • Vermont

  • Washington

There are also 5 jurisdictions that have enacted recreational marijuana laws:

  • Alaska

  • Colorado

  • District of Columbia

  • Oregon

  • Washington

Workplace Safety

Concern for workplace safety increases every year more decriminalization laws pass, pressing employers to ask, “How much marijuana is seeping into my workplace?”

  • According to the Institute for a Drug-Free Workplace, a “2014 review of 20 years of marijuana research found that driving after smoking marijuana doubles the risk of having a vehicle crash”.

  • According to the National Institute on Drug Abuse, effects of marijuana use include an altered sense of time, difficulty with thinking and problem-solving, impaired body movement and impaired memory.

  • In addition to common association to poor attendance and poor employee productivity, studies have also linked marijuana use with adverse consequences in the workplace, including industrial accidents and injuries.

Marijuana use can also lead to costs associated with lower job productivity, recruitment requirements due to voluntary or involuntary employment separation and higher workers’ compensation premiums.

Workplace Policy

The need for a strong testing program in the workplace to combat the increasing trend, to protect workplace safety and productivity, and to safeguard the integrity of employer reputation and brand has never been greater. In fact, because decriminalization will likely continue, the need for well-documented testing policies is essential. It’s important, however, for employers to first understand that:

  1. Marijuana continues to be classified as a Schedule I substance under the federal Controlled Substances Act, meaning that it is recognized at the federal level as a highly addictive substance with no legitimate medical purpose.

  2. Employers remain responsible for providing a safe workplace, and have the right to mandate employees to be free from effects of any substance while at work, or on call.

  3. State laws for medical or recreational marijuana do not legalize impairment and therefore, employers are not prohibited from testing for marijuana.

  4. Poor job performance and accidents attributable to an employee’s marijuana use need not be tolerated if a specific performance standard is in place and applied to other employees performing identical or similar job functions.

  5. There are court decisions that have supported employer discipline following confirmed marijuana use by an employee in a decriminalized jurisdiction.

  6. There is no federal requirement mandating marijuana to be accommodated by an employer.

  7. State laws governing marijuana and workplace drug testing cannot supersede any federally-mandated testing, such as that specified by Department of Transportation regulations.

For drug testing that is not federally mandated, state and local laws governing marijuana and workplace testing should be accounted for in employer policy, which may include employment protection and accommodation for medical marijuana patients. For protection of the employer in decriminalized jurisdictions, employers should consider specifying in policy that:

  1. The purpose for the employer’s policy is to preserve workplace safety.

  2. The federal definition concerning legality of marijuana is adopted by the employer.

  3. Marijuana is deemed by the employer to be a substance with high potential for impairment in any user and, consequently, will bring risk to the workplace.

  4. Job functions performed by employees are deemed “at risk” or “safety-sensitive”, as defined by either the employer or the jurisdiction.

  5. Employees remain responsible for ensuring they are free from any effects of any substance used.

  6. Employees must disclose potential use of any controlled substance (prescription drug or marijuana) to the employer in advance of working, with a physician’s statement specifying knowledge of the employee’s job functions, and assessment if use can affect the individual’s ability to safely perform.

  7. A confirmed positive drug test result for marijuana will:

    1. Deem the individual to be “under the influence”.

    2. Subject the individual to discipline identical to prohibited use of any substance.

In conjunction with a strong and well-documented policy, employers should also consider:

  1. Recurring supervisor training in all aspects of employer policy, particularly those relating to marijuana use and actions a supervisor can take when impairment is suspected, or when use has been confirmed.

  2. Recurring supervisor training for recognizing signs and symptoms of possible use – often referred to as Reasonable Suspicion or Substance Abuse Awareness training.

  3. Providing periodic educational information to employees with reminders regarding the employer’s marijuana position in decriminalized jurisdictions.

  4. Identifying in job descriptions and vacancy notices that a job is “at risk” or “safety-sensitive”, and that employees in the job are subject to drug testing.

  5. Having a signed acknowledgement of policy receipt with affirmation from all employees to abide by all policy provisions and specifications.

Most importantly, the employer’s testing policy should first be carefully reviewed by qualified legal counsel to ensure alignment with all applicable regulations, and certainly in consideration of future dispute or legal challenge that could arise.

The above content is provided for educational purposes only, and should not be deemed or treated as legal advice.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.