Last week, I posted about “fun” facts related to drugs and alcohol in the workplace. That post was an prelude to what I’ll talk about today: What employers ought to do.

As I pointed out last week, marijuana is still an illegal drug under federal law, although the Drug Enforcement Administration has issued proposed regulations that would "downgrade" marijuana to a Schedule III drug (some legitimate uses). Employees in positions that are subject to federal drug laws should be handled in accordance with the applicable federal regulations.

Step One: Know your jurisdiction(s). The laws relating to use of drugs (and, to a lesser degree, alcohol) are changing constantly, especially where use of marijuana and cannabis are concerned. At this moment, 38 states have legalized the use of medical marijuana. Recreational marijuana is legal in 24 states.

The applicable laws will normally be the laws in the states where your employees work. If your company has facilities in most states, or if you have a large and geographically dispersed remote workforce, that means you will have to keep up with a lot. This website has a nice interactive U.S. map that it says was updated as recently as Labor Day.

And it’s not just drug laws that vary from state to state. Many states also have their own disability rights laws. If an employee is legally using medical marijuana to treat a medical condition, then he or she may be protected from discrimination and may be entitled to reasonable accommodation under state law. (As I said last week and say again below, the Americans with Disabilities Act does not protect medical marijuana users because marijuana is currently illegal under federal law.)

Step Two: Determine whether any of your jobs are “safety-sensitive,” and, if so, which ones. “Safety-sensitive” can include people who operate heavy or dangerous machinery, and also white-collar sales representatives who are required to drive as part of their jobs. There are plenty of other jobs where impairment could endanger the employee, the employee’s co-workers, or the general public. On the other hand, full-time desk jobs (either at an office or at home), would usually not be considered safety-sensitive. I am oversimplifying greatly, but you get the idea.

Step Three: With safety-sensitive jobs, decide what you want to do in the way of drug/alcohol testing, and (if the employee is in a state where marijuana use is legal) what you want to do about marijuana. A good general recommendation if you have employees in a jurisdiction where recreational use is legal is to treat marijuana use the same way you would treat alcohol use. You would not take action against an employee for enjoying a few beers at home after a hard day at work, but you might justifiably take action against an employee who was three sheets to the wind when reporting for work. Ditto for pot.

But this sounds simpler than it is. Alcohol has generally accepted measures for determining whether someone is “under the influence.” Alcohol is also out of the system a few hours after consumption. Marijuana is more complicated because it stays in the body a long time, meaning people can test positive when they are arguably no longer "impaired." Also, we don’t yet have a generally accepted measure for determining marijuana impairment. Several states have driving under the influence laws that put the level of marijuana impairment at 2-5 nanograms of THC per milliliter of blood. You might be able to adopt a similar standard for your workplace.

Step Four: Decide how aggressive you want to be with employees in non-safety-sensitive jobs. Yes, you can have one set of substance abuse policies for employees in safety-sensitive jobs and another set for everybody else. If the employee is in a state where recreational marijuana use is legal and the position is not safety-sensitive, you shouldn’t be testing for marijuana unless you have (1) reasonable suspicion (2) based on objective evidence (3) to believe that the employee is impaired on the job, and (4) that the impairment is related to marijuana use (same as you’d treat an employee who seems to be drunk on the job).

But marijuana and alcohol aside, you can continue testing all employees for other controlled substances post-offer, on a random basis, based on reasonable suspicion, post-accident, and post-rehabilitation, unless a federal law controls or a specific applicable state law says you can’t. (See Step One, above.)

Step Five: Decide how you want to handle employees who test positive. Do you want to take a hard line and fire them the first time they’re caught? In many states, you can do that – but not all. (See Step One again.) Or, do you prefer to allow them to go through an Employee Assistance Program, at least after a first positive result? In my experience, most employers allow one shot at an EAP if the employee signs a Last Chance Agreement. If the employee ever tests positive again, that’s usually it.

Step Six: Realize that alcohol is in a class by itself from an ADA standpoint. As I discussed last week, alcohol addiction, even with current use, is a “disability” within the meaning of the Americans with Disabilities Act, meaning that employers cannot discriminate against employees based on alcoholism and also have to make reasonable accommodations on a limited basis. (You don’t have to accommodate drinking on the job unless you allow non-alcoholic employees to do it, but you generally do have to allow an employee who is an alcoholic to have time off for rehab and things like that.)

The ADA does not protect “current users of illegal drugs,” even if they are currently addicted. However, drug addicts who are no longer current users are considered persons with disabilities. So they are protected from discrimination and should also be allowed time off as needed to continue their treatment.

Step Seven: If your employees are in a state where marijuana use is still illegal . . . You may still have state laws that apply to drug testing, and you’ll want to comply with those. (See Step One.) Otherwise, you should be safe to ban, test for, and terminate for use of marijuana as well as other illegal drugs.

Step Eight: If your employees are spread among states where recreational marijuana is legal, where medical-only is legal, and where marijuana is illegal . . . Quit your job now while you still can. Just kidding. Here are your options: (1) Comply with the most pro-marijuana law that applies, which means you’d be treating all of your employees as if recreational use is legal. The benefit is that you have a single standard that applies to everybody. That could minimize employee perceptions of unfairness, and it also could make your life a lot simpler. The downside is that you can't be as strict with marijuana use as you legally have the right to be. (2) Apply the applicable law to each employee, which means you’d be most lenient with the employees in recreational states, medium-lenient with the employees in medical-only states, and relatively strict with the employees in “illegal” states. The benefit of this is that you are not tolerating more use of marijuana than you absolutely have to. The downsides, of course, are perceptions of unequal treatment among your employees, and administrative headaches for you.

Step Nine: Don’t forget about legal medications. You may have an applicant or employee who tests positive or is impaired on the job because of legal use of prescription medications, legal use of medical marijuana, or legal use of over-the-counter medications. If that’s the case, the individual may be legally protected and may be entitled to reasonable accommodation. (Have I mentioned in the last five minutes that medical marijuana is still an illegal drug under federal law, so an employee using medical marijuana won’t be protected by the ADA but may be protected by a state disability rights law? I feel like I have. See Step One.)

To use an example that involves neither marijuana nor alcohol, let's say Melvin, a welder with degenerative disc disease, is taking prescription opiates for the pain. Melvin in all likelihood has a “disability” within the meaning of the ADA based on his degenerative disc disease. Assuming welding is a safety-sensitive position (I'm gonna say it is, since it involves fire and molten metal), and that the opiates impair him enough to create a safety risk, then the employer may need to remove Melvin from his regular job duties, at least temporarily. This could include temporarily transferring Melvin to a non-safety-sensitive position or, if that isn’t possible, allowing him to take medical leave until he is no longer on the medication or until his dose becomes low enough to be non-impairing.

In substance abuse policies, I normally include a provision that requires employees to notify Human Resources or another appropriate person in the company if they are taking any legal medications that could create a safety issue or impair the employee’s ability to competently perform the duties of the job. But I also state in the policy that the employee will not be disciplined or discharged for making such a disclosure. Instead, the company will engage in the "interactive process" with the employee and (we hope) reach agreement on reasonable accommodations that will eliminate the risk or reduce it to an acceptable level.

Step Ten: Yes, this has all become ridiculously complicated. If this post hasn’t convinced you, I don’t know what will. Be sure to consult with qualified employment counsel when determining the laws that apply to your employees, deciding what you’re going to do, and drafting and enforcing your substance abuse policies.