With all the changes in state laws regarding medical marijuana and recreational marijuana, how do we begin to manage this in our workplaces, especially if we cross multiple states with varying laws?
There is no one answer that fits all employers. It depends on what the company wants to accomplish. Do you have a zero tolerance and/or a drug free workplace? Do they want to accommodate medical marijuana for some in “non dangerous” positions but not for others? You will need to monitor federal law as well as those states where you have employees.
The federal ADA does not require any business to accommodate for medical marijuana since it is still a schedule 1 controlled substance at the federal level and illegal. Many federal employee programs and those that get grants or bid jobs from the federal government must comply with the drug free work place law. Additionally, each state has their own regulations that must be complied with as well. Some may require some type of accommodation for medical marijuana. Of course, impairment from alcohol or from any drug should be prohibited in the workplace and consequences clearly stated.
At a minimum, all employers should have a drug policy in place that deals with marijuana and medical marijuana as well as other illegal drug and alcohol. Since contracts over $100,000 with the federal government require you to have a “drug free work place” it may be prudent to look at those requirements and implement them in your drug policy:
- Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the policy.
- Establish a drug-free awareness program to make employees aware of a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations.
- Notify employees that as a condition of employment on a Federal contract or grant, the employee must a) abide by the terms of the policy statement; and b) notify the employer, within five calendar days, if he or she is convicted of a criminal drug violation in the workplace.
- Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace.
- Impose a penalty on—orrequire satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction.
- Make an ongoing, good faith effort to maintain a drug-free workplace by meeting the requirements of the Act.
(Note: Source is US Department of Labor elaws – https://webapps.dol.gov/elaws/asp/drugfree/require.htm)
Make sure there are consequences for use, transfer or possession at work, as well as impairment at work regardless of when and where the marijuana was smoked.
Comply with each state policy. This takes significant work as you have to look at each state’s law on marijuana as well as laws relating to disability, workers compensation and accommodation and discrimination. This makes it important to define the situs state of the employees’ work so the employee knows which aspect of the policy applies to the employee.
What is clear is that federal law still makes possession of marijuana illegal. This means that you have no duty to accommodate medical marijuana under the federal ADA.
Thank you to Anthony Castelli with the Law Office of Anthony D. Castelli for sharing his insight and advice on this topic. If you have additional questions, feel free to contact Tony at (513) 621-2345 or Email: Tony@castellilaw.com.
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