State Legalization of Marijuana Presents Thorny Issues for HR

 

By Joanne Deschenaux, J.D. March 20, 2019
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​As more states legalize medical and recreational marijuana use, HR continues to struggle with the challenges presented by applicants and employees who use the drug, said Vantaggio HR President Lauraine Bifulco, speaking March 19 at the 2019 Society for Human Resource Management Employment Law & Legislative Conference.

Bifulco began her presentation by outlining some eye-opening statistics:

  • U.S. marijuana production has increased tenfold over the last 25 years.
  • Next to alcohol, marijuana is the second most frequently found substance in drivers involved in fatal car accidents. 
  • Employees who test positive for marijuana have 55 percent more industrial accidents, 75 percent higher absenteeism and 85 percent more injuries than those who test negative for the drug.
  • There are 1.2 million authorized users of medical marijuana in the United States.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

While marijuana use remains illegal at the federal level, 33 states have legalized medical use, and 10 states have also legalized recreational use, Bifulco noted.

And state legalization "is definitely something we will continue to see," she said.

Among the states that have legalized marijuana, there are "red" states as well as "blue" states, said Jonathan A. Segal, an attorney with Duane Morris in Philadelphia who also spoke at the conference.

"We live in a world where we disagree on so many things, but not on weed," Segal joked.

Medical Marijuana

"People mistakenly think that if you have a medical marijuana identification card (MMID), you [are allowed to] be under the influence at work, but this is wrong," Bifulco said.

No law requires an employer to accommodate a worker who's under the influence at work, she explained. However, other legal questions arise with regard to employee medical marijuana use.

For example, she asked, "Can you terminate or [not] hire an employee for testing positive on a medical marijuana test if that person has a legal MMID?"

The answer, she said, is maybe.

Several courts have ruled that employers can uphold workplace drug-free policies because marijuana use violates federal law. However, 13 states have passed laws to explicitly prohibit workplace discrimination against patients who use medical marijuana.

And while the federal Americans with Disabilities Act (ADA) does not protect illegal drug use, which includes marijuana use because it is illegal under federal law, many states have nondiscrimination laws similar to the ADA. These statutes do not mention medical marijuana, and court decisions under these state laws are divided. Courts in eight states have ruled in favor of employers, while four have ruled in favor of employees, Bifulco said.

More recent rulings, however, show a shift toward protecting employees, she said, suggesting that even employers in states with pro-employer rulings should be cautious.

"I think we are moving into a brave new world," she said.

In the 33 states where medical marijuana is legal, "if you want to have a zero-tolerance policy, be very careful," she advised.

Formulating policies on medical marijuana may be particularly troublesome for multistate employers, Segal said.

"How do you have a universal rule when laws differ so much from state to state?" he asked.

More multistate employers are therefore saying, "This is too thorny. We will not test for cannabis, except where required by law," such as where Department of Transportation regulations require testing, Segal noted.

Recreational Marijuana

Bifulco posed another question about recreational marijuana use: If it's legal in your state, can you fire or refuse to hire someone for testing positive if that person does not have an MMID?

Again, she offered the same answer: maybe.

In many of the states that have legalized recreational marijuana, the laws allow employers to continue to maintain zero-tolerance policies based on federal law. Several states, however, are silent as to whether employers may limit or regulate an employee's use of marijuana outside the workplace.

Unlike with medical marijuana, the state laws that may come into play with regard to recreational marijuana use are not disability bias laws but are laws regarding invasion of privacy and laws protecting employees' off-duty conduct, Bifulco said.  

In 2018, Maine became the first state to protect employees' use of marijuana (not just medical marijuana) outside the workplace. Under the law, employers can't even test applicants for marijuana.

They can, however, still prohibit its use at work and discipline employees for being under the influence while on duty.

Bifulco said that she expects other states to follow Maine's example and pass laws prohibiting drug testing for marijuana.

Challenges of Drug-Testing Programs

Under most drug-testing programs that employers now use, a positive marijuana test will not indicate if the marijuana use happened on or off duty, Bifulco said. In fact, urine testing, the most commonly used method, may detect use that occurred as many as 90 days before the test was taken.

With that in mind, HR should ask a variety of questions before deciding whether to test applicants and employees for marijuana, she said.

These include:

  • How much of a concern is safety in our workplace or in certain positions?
  • Is medical marijuana legal in our state, and, if so, are MMID holders protected from employment discrimination?
  • Is recreational use of marijuana legal, and, if so, can employers enforce zero-tolerance polices?
  • Does our state have off-duty conduct or relevant privacy laws?   

Recommendations

While recognizing the complexity of the problems raised by the many new laws regarding marijuana use, Bifulco concluded by offering a few suggestions for HR:

  • Start thinking of marijuana in the workplace as you would think of alcohol in the workplace.
  • Accommodate MMID holders, assuming there is an underlying disability.
  • Focus on prohibiting the use or possession of marijuana while at work or being under the influence at work.
  • Focus on safety and testing when there is a reasonable suspicion of workplace impairment.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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