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Drug Testing in the Era of Marijuana Legalization

In a constantly changing legal landscape, employers must take care when creating a zero-tolerance policy.

How can an employer continue to pursue a drug-testing policy in the midst of the continuing trend of states legalizing marijuana for both medical and recreational use, especially when these states’ laws run up against federal laws that still ban the psychoactive drug’s use?

It can be hard to do so, but it is still possible, according to attorneys J. Christopher Selman and Alexander Thrasher of the law firm of Bradley Arant Boult Cummings LLP. “This rapidly evolving legal landscape presents new challenges for employers, particularly those with offices and employees in several states,” they admit. “Employers must balance complying with often divergent federal and state laws, maintaining a safe work environment and protecting employees’ rights.”

Most employers today have implemented a zero-tolerance policy that bans the use of alcohol and illegal substances for obvious safety reasons, but new state laws can create additional problems partly because those company policies usually exclude prescription drugs when a worker informs the employer about using them.

At one end of the spectrum, some states require that employers must accommodate an employee’s use of medical marijuana. Late last year a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user for this reason. Also, an Oklahoma law prohibits adverse actions taken by an employer that are based on finding out that an employee is a medical marijuana card holder or that result from a positive drug test unless the employer is required to or would lose a benefit under federal law or regulations.

Problems also can crop up from the trickiness of coming to an unassailable determination that an individual is actually impaired, thus warranting a drug test. This difficulty in defining and establishing what constitutes impaired behavior creates liability for the employers. It is not unusual for workers’ attorneys to try to make a case that the employer is mistaken in assessment of the employee’s behavior. This can lead to allegations that discriminatory drug testing had been conducted or that wrongful employment actions were taken.

At the other end of the spectrum, states like California and Ohio where medical marijuana is legal do not require accommodation of employee use. In other states laws provide for varying levels of requiring employers’ accommodation for employees’ medical marijuana use, including Illinois, Delaware, Nevada, New York and West Virginia.

“Developing a well-defined company policy on marijuana use can minimize the risk of harm to persons and property, and decrease the likelihood that drug testing and disciplinary action arising from marijuana intoxication will open the door to liability for adverse employment decisions,” Selman and Thrasher assert.

“An effective drug policy decreases hazards and promotes an accident-free work environment. While state and federal laws meant to promote this goal may seem straightforward when read in isolation, problems arise when these laws overlap or conflict with one another.”

Taking the Right Steps

The attorneys lay out steps that employers should take to create a truly effective drug policy even in states where the laws are least friendly to doing so, as long as they follow certain guidelines:

● Define the terms “marijuana,” “cannabis” or any other derivation of the drug. Simply prohibiting the use of “illegal drugs” can create ambiguity because of marijuana’s legal status in various jurisdictions.

● State explicitly that the use of marijuana, whether recreationally or on the job, is strictly prohibited.

● Articulate drug-testing policies and procedures, including detailing what the penalties are for failing a drug test.

● Educate employees on clinical issues relating to marijuana, such as its effects on the body, the length of time it can continue to impair cognitive and physiological functions, and the potential impacts it can have on workplace safety and performance.

● Include the written policy in recruiting and new-hire onboarding materials to ensure notice to the individuals you hire.

● Make sure that you always administer your drug testing program in a consistent manner. Once a drug policy is adopted, it is critical to conduct drug tests uniformly for all of your employees. Failure to do so can subject an employer to liability for discrimination claims.

If an employee tests positive for marijuana, the recourse available to an employer can vary greatly under federal and state laws. Rest assured that in all of the states—even those that have legalized medical marijuana use—federal prohibitions continue to apply that prohibit being under the influence of the drug for certain occupations, such as truck drivers and airline pilots.

In addition, courts have consistently found that the Americans with Disabilities Act (ADA) currently does not shield an employee from adverse employment actions if they are found to be using marijuana to treat a disability, even in cases where the employee refrains from using medical marijuana while on the job.

The ADA explicitly exempts from its scope the “illegal use of drugs” and defines that term to include any substances that are unlawful under the federal Controlled Substances Act, which still lists marijuana as a banned substance. As a result, employers can terminate an employee who tests positive for marijuana—even if that employee is disabled, prescribed medical marijuana and only uses marijuana on his or her own time—and avoid risking liability under the ADA.

“Note, however, that under the ADA, if an employee discloses a disability and requests an accommodation, an employer is required to consider reasonable accommodations, which could include transfer to a non-safety sensitive job (where the marijuana use may not pose a safety concern) or temporary leave during treatment,” Selman and Thrasher warn.

While state and federal laws may seem straightforward when read in isolation, problems arise when they overlap or conflict with one another, the lawyers stress. “It is particularly important that those employers operating in any of the 30-plus states in which marijuana is now legal in some form take time to review current policies and evaluate the need for changes to ensure employee safety and reduce company risk.”

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