October 30, 2019
Pick Your Poison: Medical Marijuana in the Workplace
The National Safety Council recently published a position/policy statement that “there is no level of cannabis use that is safe or acceptable for employees who work in safety sensitive positions.”
Earlier this year, the U.S. Department of Transportation reiterated its similar position that their testing regulation for DOT drivers, “does not authorize ‘medical marijuana’ under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.”
And, as of this writing the EEOC has no position statement other than guidance on “How to Comply with the Americans with Disabilities Act” that reads, “Even though Alice’s record of drug addiction means that she might have been protected by the ADA as a person with a record of a disability, her current illegal use of drugs means that you may terminate her without violating the ADA.”
On the flip side, many states have legalized medicinal use, recreational use and/or decriminalized the use or possession of marijuana in specified quantities. As of this writing, at least:
- 33 states have enacted laws permitting medically prescribed use of marijuana and 14 states had related legislation this year;
- 26 states have decriminalized its use and another 17 had related legislation this year; and
- 11 states plus DC have legalized its recreational use and another 27 had related legislation this year.
So, what’s an employer to do? Tread lightly. Talk to the lab that conducts your substance testing. Talk to them about your job requirements and what panels you want them to run. Let them educate you about the different panels and decide which are related to the essential functions of your job. If an employee tests positive for marijuana, consider the laws of the state in which you operate, the essential functions and safety considerations of the job. Then, consult with your HR representative and/or legal counsel before denying an applicant a job or taking adverse action against a current employee.