Recent developments relative to the legalization of marijuana create a number of issues for employers, and a number of options too. As discussed in Part I of this blog series, changes in the law have been dramatic and swift, with profound effects on the hiring process. This post speaks to the issue of marijuana use by current employees.
3 Issues to Consider
1. Testing technology has room for improvement.
If you wish to adopt and enforce a strict “no tolerance” policy, first consider the issues posed by detecting impairment. Physical indications of marijuana impairment are less pronounced, and more easily misinterpreted, than those associated with alcohol (e.g., slurred speech, breath). Commonly administered drug tests (e.g., urine, blood, hair) do not gauge impairment in the same way a breathalyzer gauges alcohol impairment.
For example, someone who uses marijuana off-duty on a Saturday may show high levels of tetrahydrocannabinol (THC) if tested at work on the following Monday (or in some cases, weeks later). However, this does not necessarily mean the individual is impaired at work. Similarly, the saliva test fails to identify an accurate intake period, and field sobriety tests are still experimental with mixed results. Testing procedures and accuracy have been a controversial topic for years, most pronounced in states like Colorado (where marijuana is legal). Look for advancements in testing technology in years to come.
2. Impact of the Americans with Disabilities Act.
Second is the potential of an Americans with Disabilities Act (ADA) issue, should an employee who tests positive be prescribed medical marijuana. On the one hand, federal law prohibits marijuana use—medical or otherwise. And, per 42 U.S.C. § 12114(a), “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs.” On the other hand, over half of the states allow medical marijuana use. Further, many businesses recognize a medical exception—allowing employees with appropriate clearance to use medical marijuana, as long as use does not impair the employee at work.
3. Different states, different laws.
A third area of concern is neighboring state and/or local laws. For example, if your business is in Kansas (where marijuana use is illegal), and you have employees living in Colorado (where recreational and medical marijuana use is legal), Kansas law applies to activities in the workplace whereas Colorado applies to activities at home. The issue this causes is obvious. Similar issues arise with employees who vacation in states that have legalized marijuana use. Again, a positive test may signify use on vacation weeks prior.
Developments in marijuana legalization and public opinion on marijuana have changed significantly over the past few years. As a result, there is no “one size fits all” approach to address usage in every business or state. Additional state legalization, potential federal changes, and pending litigation (state and federal) could directly impact labor and employment laws relative to marijuana use. While you currently have an opportunity to address marijuana use as you see fit, make sure you do not box yourself in, that you are mindful of legitimate exceptions (e.g., medical), that you are committed to enforcing your chosen policy consistently, and that you stay tuned to further developments.
Mark Goldstein is President of Goldstein Law Group, S.C., a boutique law firm serving as outside general counsel to business, with a focus on labor and employment issues, business litigation, and corporate law. He is a frequent speaker and writer on labor and employment law and other topics.