Review of Drug-Free Workplace Policies is Highly Recommended

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We strongly suggest that if you have not reviewed your drug-free workplace policies in a year or more, it is time to get reacquainted with your program. Many employers are starting to freak out a bit about upcoming marijuana decriminalization, legalization, and ultimately greater access allowed for Americans – and rightfully so. It is a murky landscape, with few sources of clarity.

As more states allow the recreational use of marijuana, a failed drug test becomes a beginning, not necessarily an end, in the pre-employment and post-offer timeline. At least 20 states to date have passed laws that allow for the use of medical marijuana. A likely scenario is a prospective or current employee admits to being a medical marijuana patient. Now what?

The possession of marijuana and it’s use are still against the law under the Federal Controlled Substances Act. If your state of operation has allowed the medical use of marijuana, then federal enforcement does not apply. In fact, many states have strict laws protecting qualified patients from discrimination in employment practices.

Consider another scenario – in Arizona and Delaware, employers cannot discharge, penalize, or refuse to hire a lawful medical marijuana user based on a positive drug test for marijuana components or metabolites unless that person actually used, possessed, or was impaired by marijuana while on the employer’s premises during working hours. In short, a positive test alone is not grounds for discharge, no matter what company policy states. There must be evidence of the employee being under the influence of marijuana while in the workplace. This points to additional training for your supervisors and others making hiring and placement decisions similar to “under the influence” training. Timelines and observations will be key in the case of employees challenging failed drug tests and whether or not they were impaired while at the workplace.

The phrase “safety sensitive positions” goes hand in hand with medical and recreational marijuana. Currently, most laws do not allow for operation of any motor vehicle while under the influence of marijuana. If you are in Rhode Island or Delaware, a registered and qualified patient using medical marijuana would not be considered to be under the influence just based on metabolites of marijuana being in their system.

With all of this said, most states that do have medical marijuana laws have maintained the employer’s right to have a drug-free workplace.

As always, step one with program review is to ensure that your program is compliant with local and state laws. With this specific topic, if you are still looking for guidance and answers, it is good practice to discuss with your legal counsel of choice.

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