3 Steps Employers Can Take to Address Changing Marijuana Laws

Legalization of marijuana has been one of the fastest moving trends in the country. Just consider this: To date, eight states and Washington D.C. have passed laws legalizing recreational use, 28 states and Washington D.C. legalized medical marijuana and 21 states have decriminalized certain marijuana possession offenses.

This sweeping trend has caused much confusion for employers and raised a flurry of questions including:

• Are there employment protections for employees who use marijuana in states where it is legal?
• What types of policies should be implemented to set employee expectations?
• How to ensure compliant drug testing practices?

Moving through the haze of state and federal laws on the legal status of marijuana can be difficult. However, if employers take a step back, they will see that it should mostly be “business as usual” at their workplace. This is because no matter what the marijuana laws say at the state level, it is still illegal under federal law, so employers can continue to prohibit the use of marijuana in the workplace.

Therefore, employers still have the ability to put policies in place that prohibit use by employees in the same manner as other legal substances, such as prescription drugs or alcohol, due to the fact that these substances could impair the employee’s ability to perform their job and could potentially create some safety concerns. To effectively deal with this issue, employers should consider the following three steps:

1) Implement a clear drug and alcohol policy

The policy should state that the use of, or being under the influence of, alcohol, prescription drugs or drugs that are illegal under federal, state or local law, is prohibited in the workplace. Remember, the states and cities that have legalized marijuana use have done so from a criminal standpoint - those laws do not require that employers accommodate marijuana use in the workplace.

2) Have a clear drug testing policy and process

Your policy should specify the type of drug testing you will conduct, i.e., pre-employment, reasonable suspicion etc. The policy should match your employment practices and set employee expectations. This policy can also state that the employer will transport the employee to the drug testing facility. If the employee is suspected of being under the influence, and their impairment is preventing them from doing their job duties, then they shouldn’t be expected to drive a vehicle. This mitigates the risk of the employee getting into an accident on their way to the drug testing facility. In addition, the policy should state that the consequences of a failed drug test could result in disciplinary action, up to, and including termination.

If you have not previously implemented a drug testing program, it is recommended that you provide employees (and applicants) with advance notice of your drug testing program. States and cities may have specific notice requirements, so make sure you are checking any applicable laws before you implement a drug testing program (i.e., Florida requires a 60-day initial notice). During the notice period, you may test applicants on a pre-employment basis. Employers should treat all applicants equally; if you are going to conduct pre-employment drug tests on applicants then all applicants should be tested. You may also want to include a statement in the notice advising employees that during the notice period they should seek assistance with drug/alcohol dependency. Once the notice period has expired, you may then test your employees on a random or probable suspicion basis, as allowed per applicable state and local law (i.e., in California, random drug testing is extremely limited).

3) Partner with a reputable drug testing vendor

A strong partnership with a drug testing vendor can help reduce an employer’s risk when it comes to drug testing. It can help ensure that your employees get proper notice of drug testing and that completed consent forms are collected and on file, making it easier to maintain a proper chain of custody documentation. A good vendor will also reduce administrative burdens by coordinating with employees and local facilities, as well as handling pricing and payments on behalf of the employer.

The crucial point to keep in mind when setting policy and putting practices in place to comply with these different marijuana laws is that they address the use of marijuana from a criminal context. None of these laws prohibit an employer from establishing and enforcing drug-testing, a drug-free workplace and zero-drug tolerance policies. The key is to have a policy and procedures in place that set clear expectations for employees and implement them consistently.

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.