This election year has the potential for making the world of HR managers a bit hazier than it has been in the past. At least nine states have marijuana legalization initiatives on their ballots for November. Some of these initiatives involve the use of medical marijuana, while others propose regulating marijuana similarly to how alcohol is regulated. Legalized marijuana is not a new issue for HR. Twenty-five states and the District of Columbia have some form of legalized marijuana, so the question of how to deal with it in the workplace has come up before for many companies.
In reality, for the most part, no new rules are needed to figure out how to deal with marijuana in the workplace. Many companies already have policies and rules that prohibit employees from working under the influence or while impaired. These policies cover the use of prescription medications and alcohol. Such policies prevent accidents, mistakes, and embarrassments that may cause injuries or cost a company money or its reputation. There are, however, some potential issues specific to marijuana use that employers need to be aware of.
Under federal law, marijuana is still an illegal drug, regardless of how it is used. Colorado, an early adopter, makes a point in its informational website to say, “Since marijuana is still illegal under federal law, you can’t use it on federal land, including national parks and national forests. This includes ski slopes.” This prohibition applies to all states where property is owned by the federal government.
In every state that has legalized marijuana use, employers are still allowed to have a policy that bans impairment while engaged in work. As stated above, this applies not just to marijuana but also to alcohol and prescription medications such as pain killers. Employers are allowed to have drug testing procedures in place as well, to detect possible impairment, and they are allowed to discipline workers, including terminating them, for violation of the stated policy.
There are several challenges to employers, however. ‘>The first is public perception. In states where marijuana use has been legalized, the public may perceive that employers will be looser about the rules, and indeed an employer can choose to be more liberal in its actions toward employees who partake. They just have to be willing to deal with the consequences. After all, many employers allow alcohol at company functions, and some companies even have a beer tap in the lunch room. You just have to have a properly delineated set of expectations and exceptions to apply.
For employers who want to maintain a hard line against any drug use that may cause impairment, OSHA has thrown in a wrinkle by saying, “…drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” With marijuana use, studies have shown that the active ingredient in marijuana, THC, stays in the blood stream much longer than alcohol does. Therefore, it may be detectable long after the impaired effect may have passed. So it may be useful to test someone after an event has occurred, but individual companies will have to decide how they want to deal with that kind of situation.
A third challenge will be for companies that have employees who use marijuana for medical reasons. There may be some discussion and confusion about this usage, given that they should have an obvious condition that would qualify for coverage under the ADAAA. Employees may seek the okay to use medical marijuana as an accommodation. However, according to an article by SHRM:
In addition, the Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for someone with a disability, even if that person is a registered medical marijuana patient. The 9th U.S. Circuit Court of Appeals has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”
This might allow you to prohibit these employees from working while impaired, but other ADA accommodations, such as time off, may be sought instead. You need to make sure you are going through a documented interactive discussion process if you encounter such a situation.
There are several steps that employers should take.
How has your company dealt with marijuana use on the job? Do you think it should be treated differently from other substances, particularly if it is for medical use?