As the number of states authorizing use of cannabis increases for both medical and adult (i.e., recreational) purposes, the ambiguities and issues for employers continue to grow. Regardless of expansion at the state level, the simple fact remains that marijuana is illegal under federal law. Employers are faced with employees legally consuming marijuana under state law, while simultaneously violating company drug use policies, the federal Drug-Free Workplace Act and zero tolerance policies. In the face of these complexities, companies are rethinking drug testing policies, considering exceptions to their drug policies with respect to medical marijuana use or scrapping marijuana drug testing altogether. Employers thinking about taking such actions should proceed with caution and consider these three important questions:
1. What marijuana activities are authorized by law in the state where your employees work? State laws vary widely with respect to marijuana. Some states have only authorized medical marijuana, while others have authorized medical and adult use. Generally, these programs are treated differently. Further, the conditions that each state recognizes for the use of medical marijuana are different. Understanding the specific parameters of authorized marijuana activities in the state where your employees work is paramount when determining drug policy revisions. Here is a map of the latest marijuana laws by state.
2. Is the company at risk of violating, or in violation of, state law if it forbids, limits or disciplines an employee from/for using marijuana for medical purposes? The state laws regarding marijuana activities are rapidly changing as more states expand or create medical marijuana programs. For employers, the language of the state medical marijuana statutes is key. Some state laws explicitly write out the obligation of employers to accommodate in the medical marijuana law itself. Some states have taken a contrary approach and explicitly placed language in their statutes requiring employers to accommodate legal out-of-work marijuana consumption, unless the employer can show that the usage is negatively impacting performance or job responsibilities. Other states' statutes fall somewhere in the middle, stating that employers are not required to accommodate any on-site medical marijuana use at any place of employment. Further, in some states, employers may have to accommodate medical marijuana users under states' disability discrimination laws. For example, the New York Compassionate Care Act states that "certified patients" who have been recommended medical marijuana have a disability under the New York State Human Rights Law, and employers with four or more employees cannot terminate or refuse to employ workers on their status as certified medical marijuana patients. Evaluating statutory language for your state will help assess your company’s potential risk.
3. How, if at all, do your employee handbook and company policies address use or possession of drugs that are federally illegal but whose use is authorized under state law? In a case last year, the Massachusetts Supreme Court found that allowing off-site use of medical marijuana, despite an employer's drug-free workplace policy, may be a reasonable accommodation under Massachusetts disability discrimination law, if it is not an undue hardship on the employer's business. If your company has a drug-free workplace policy, or plans to establish one, then consider amending it if your state has statutory language about providing reasonable off-site accommodations for medical marijuana use by employees with a documented medical condition and a certification from a physician.
