Medical Marijuana in the Workplace: Into the Weeds for Employers (Part 1)

  • By Mark Ridgeway
  • 13 Oct, 2017
medical marijuana
As of April 2017, there are 29 states that allow marijuana use for medical purposes. There is considerable variation in medical cannabis laws from state to state, including how it is produced and distributed, how it can be consumed and what medical conditions it can be used for.

At the federal level, cannabis is still a prohibited substance. However in 2014, the Rohrabacher–Farr amendment  was signed into law, prohibiting the Justice Department from spending funds to interfere with the implementation of state medical cannabis laws.

The following excerpt from a   Society for Human Resource Management  article gives a general overview of how medical marijuana impacts employers and the issues that need to be considered if you are in one of the 29 states:

Medical Marijuana

With all the changes to state laws now permitting recreational and medical marijuana use, HR professionals are understandably feeling dazed and confused. There are many questions:

  • Is an employer required to accommodate the use of medical marijuana?
  • Must an employer forgive an employee's recreational use of marijuana over the weekend?
  • What if the employee is a truck driver? An elementary school teacher?
  • What if the employee fails a drug test?

Employers with employees who use medical marijuana will have to do some studying into the employee's job requirements. In those states where an accommodation is required, an employer needs to carefully evaluate the job before taking any action due to the use of medical marijuana.

For instance, if an employee tests positive for marijuana, the employer should ask the worker to verify that he or she is a participant in a recognized medical marijuana program. Then the employer conducts a further evaluation of the employment situation. In the states requiring accommodation, the employer should look at the specific demands of the job, as well as any competing regulations that may apply, in considering an employee’s use of medical marijuana. For instance, the Department of Transportation’s regulations do not permit the use of marijuana.

Generally speaking, an employer does not have to allow for an employee to be actively under the influence while at work. But an accommodation may be necessary, depending on the nature of the job and the safety and other sensitivities of the position.

Once an employer is provided notification that an employee is a medical marijuana user, that employer needs to be especially careful how it uses that information and how far it goes in asking for more. This is because the employer now is likely on notice that the employee is potentially disabled under the Americans with Disabilities Act (ADA) or similar state statutes and/or has a serious health condition under the Family and Medical Leave Act. While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability (for example, glaucoma), and affords certain protections to employees and applicants with disabilities, such as the confidentiality of medical information.

That said, courts so far have not supported the discrimination claims of medical marijuana users. In one of the most publicized cases, the Colorado Supreme Court recently heard the case of Coats v. Dish Network , in which an employee of Dish Network sued under Colorado’s lawful off-duty activities law after being fired for failing a random drug test despite having a medical marijuana license. In a unanimous decision, the court found in favor of the company based on the fact that federal law still classifies marijuana as a controlled substance. Many in the medical marijuana community felt that the outcome of Coats  highlights the need for further reforms concerning the use of medical marijuana and protections for those registered users.

Employers in states allowing for the use of medical marijuana should familiarize themselves with the relevant statutes and, in particular, determine whether their state statute requires that accommodations be made. Even if the statute itself does not require an accommodation, employers may want to consider voluntary accommodations for the use of medical marijuana, particularly in the context of zero-tolerance drug test policies. Despite the recent changes in the law, however, employers can rest assured that they need not tolerate an employee being clearly under the influence while at work.

Recreational Marijuana

Do employers in states that have authorized recreational marijuana use have to allow for the use of marijuana apart from any participation in a recognized medical marijuana program?

Fortunately for employers, the marijuana laws in Alaska, Colorado and the District of Columbia provide express protections, indicating that employers are not required to permit or accommodate the use, sale, possession, transfer or the like of marijuana in the workplace. The laws in Oregon and Washington, however, are silent as to the impact of recreational marijuana in the workplace.

Nonetheless, as long as an employer has a clearly communicated and enforced policy prohibiting the use and possession of marijuana and other controlled substances while at work, that employer can likely legally terminate an employee for his or her use of recreational marijuana because use is still illegal under federal law. While the use of recreational marijuana and its impact on the workplace is still relatively new legal territory, those courts that have addressed such circumstances have thus far upheld employer termination decisions.

Next week: An overview of the Arkansas Medical Marijuana Act

The CHC Blog

By Mark Ridgeway 10 Nov, 2017
Conducting background screening and having a practical screening program are not the same thing. Whether you are new to screening or want to move from “screening” to “sensible screening,” it is important to understand four fundamentals of employment screening.  
  1. Not all information is available instantly.  Despite online offerings to the contrary, a quality background check will generally take one to three business days to complete and, in some cases, longer. The U.S. Federal Fair Credit Reporting Act (FCRA)  requires a screening company to “follow reasonable procedures to assure maximum possible accuracy.” This means searches must often be conducted at the source, such as a school, courthouse, state licensing bureau or a previous employer.
  2. National criminal databases are not definitive sources.   Commercial (non-governmental) databases are often advertised as “national,” but this is a misnomer. These databases are developed by purchasing criminal records from numerous sources and using techniques like screen scraping and web harvesting to capture records. These massive databases often contain up to a half billion records. They do not contain all criminal records in the U.S., because some sources will not sell a copy of records or allow records to be captured. Additionally, records within the database may be incomplete or not reflect the current record status
  3. The subject of the background check is part of the process.   Per the FCRA , the subject of the background check must know about and authorize the background check before it is requested from the screening company. The subject has the right to a copy of the report and must have an opportunity to dispute inaccurate information in the report before an employment decision is made.
  4. Employment screening is heavily regulated.   Federal, state and even local law govern the preparation and use of background reports when prepared by a third party, like an employment screening company. These laws and regulations are applicable even if the background report contains only public record information, such as criminal records.
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