Navigating Marijuana Use in the Workplace

  • Editorial Team
  • News
  • 10 July 2023

Employers, especially those in safety-sensitive positions or subject to federal regulations, must carefully review their policies and strategies regarding positive drug tests related to marijuana use. With the changing landscape of marijuana legalization across states, employers need to ensure compliance with local, state, and federal regulations while addressing the use of marijuana in the workplace.

State-by-State Variations in Marijuana Laws

With 38 states allowing medical marijuana use, 19 states permitting recreational use, and 18 states approving the use of CBD products for medical conditions, employers must understand the specific regulations in their jurisdiction. Recent trends indicate that certain states and cities are prohibiting drug tests for marijuana in certain situations, highlighting the need for employers to update their perspectives on marijuana compared to two decades ago.

Federal Law and Government Contracts

Despite marijuana’s classification as a Schedule I drug under the Controlled Substances Act, the federal government has not enforced this statute and no legislation has been passed to legalize marijuana at the federal level. However, employers with government contracts and those filling roles requiring federal agency licensure or compliance face additional challenges. For instance, the Federal Department of Transportation (FDOT) strictly prohibits marijuana use in regulated businesses and does not accept medical marijuana as a justification for a positive drug test for CDL-licensed drivers.

Interplay of Federal and State Laws

Being a federal contractor under the Drug-Free Workplace Act does not automatically mandate marijuana testing or penalties for positive tests. The Act does not require drug testing and does not grant businesses the right to regulate employee drug or alcohol use outside of work hours. As a result, some courts have rejected claims by employers that their government contractor status prevented them from hiring medical marijuana users. Employers must navigate state and local regulations when federal law compliance is not required.

Variations in State and Municipal Regulations

Marijuana drug testing restrictions differ across states and municipalities. For example, New York and Rhode Island prohibit marijuana testing for any reason, while Montana and New Jersey strictly forbid it. In Nevada, pre-employment marijuana testing is legal, but employers can only reject candidates if the position is safety-sensitive. The City of Philadelphia prohibits marijuana testing altogether. Also, several states have enacted statutes protecting employees from discrimination and retaliation based on their use of medical marijuana.

Employer Responsibilities and Individual Assessments

Employers should approach medical marijuana like any other prescription drug used for treating health issues. Individualized assessments, interactive dialogues with employees, safety and direct threat analyses, and compliance evaluations with state and federal laws are necessary before rejecting reasonable accommodations for medical marijuana use. Employers should avoid knee-jerk reactions and base decisions on evidence rather than preconceived notions about marijuana use.

Reasonable Accommodations and Policy Reviews

Reasonable accommodations may include waivers for positive drug tests, exceptions to rules, schedule changes, leaves of absence, or reassignments. Employers should review their policies to ensure coverage of foreseeable situations. It is important for employees to disclose any prescriptions, including medical marijuana, and any related side effects before reporting to work while intoxicated. Job responsibilities can be adjusted to address performance difficulties if an impairment is observed.

Communication with Medical Review Officers (MRO) and Testing Companies

Employers must establish clear communication with MROs and drug testing companies. This enables employers to appropriately handle situations where an applicant or employee tests positive for marijuana but claims medicinal use. Understanding the applicable laws, obtaining necessary documentation, and conducting relevant analyses can guide employers in making informed decisions and maintaining policy compliance.