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March 31st, 2016 | Sterling

Workplace Drug Policies in the Age of Legal Marijuana: What Employers Need to Consider

Has Your State Banned the Box?

The landscape of legal and medical marijuana is in a state of constant change, making it increasingly difficult for employers to navigate legislation and maintain compliance. There are more than 600 state laws and regulations that impact private workplace drug testing programs, and more than 10,000 court and agency rulings. Currently, 24 states plus Washington D.C. permit medical marijuana and 4 states plus D.C. allow recreational marijuana for users 21 and over, however, over 80% of employers are still testing for marijuana in the workplace.

Employers must pay attention to the laws for the states in which they operate because state laws are vastly different and can dramatically impact policy decisions and compliance risk. In Illinois where medical marijuana is permitted, employers may still uphold workplace drug testing with a zero-tolerance policy. Nearby in Michigan, however, an employee-medical marijuana patient fired for using marijuana may be eligible for unemployment. In New Mexico an employer is required to reimburse the cost of purchasing marijuana if it’s recommended to treat an employee’s workplace injuries.

There are 12 states in which laws limit an employer’s actions. Delaware prohibits declaring an authorized user as under the influence based on the presence of metabolites or low concentrations of cannabinoids, while Minnesota prohibits termination based solely on the use of medical marijuana.

New York is a unique case because the medical marijuana law specifies being a “certified” medical marijuana patient means having a “disability” under the New York Human Rights law. However, these users will not find protection from federal regulations such as the Americans with Disabilities Act (ADA) because marijuana is still listed as a Schedule I illegal substance under federal law.

Federal employers and many federally-funded programs are exempt from state laws and may be required to follow specific protocols for conducting drug testing and enforcing workplace policies. For example, the Department of Transportation’s 49 CFR Part 40 outlines that Schedule I illegal drugs are not authorized for use for any reason.

Clearly, employers face great confusion in the contradictions between federal and state marijuana laws. If federal law holds that possession is illegal, how do employers navigate their own state laws and craft appropriate policies when medical or recreation use is permitted? And what about organizations hiring and operating in multiple states with different laws? Unfortunately, there is no easy answer.

For an employer to maintain compliance and transparency, it’s crucial to understand the regulations in all the states in which you operate. From there, the organization can decide what policies will be best for their company and its employees. Encompass has clients that have established core workplace policies for drug testing with addendums that address unique regulations state by state. Encompass also has available Employer State Guides to Medical Marijuana.

There is no doubt that future attempts will be made to reclassify or legalize marijuana on a federal level; marijuana is the most popular illegal drug in our country. However, we must remember that today, marijuana is still considered a Schedule I illegal drug to possess and federal law trumps state laws.

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.