By Jean Roque, President, Trupp HR.
While marijuana continues to be federally regulated as a Schedule I controlled substance, today, nearly half of the U.S. has legalized marijuana for medicinal and/or personal use. If pending state laws were to pass, that number would reach 80%. The increasing number of state laws legalizing marijuana, combined with the inability to test in real-time for use of marijuana, is placing more and more of our country’s employers in a precarious position that mandates a careful and thoughtful review of company drug policies.
Is it time to shore up your drug policies?
Whether a company’s drug policy is driven by law, contracts, risk mitigation or company values, there continues to be a widespread commitment to enforce a drug-free workplace. Regardless of the reason, state laws legalizing marijuana create a need for action including:
Should your company relax its drug policies?
Companies operating in states with a legal form of marijuana may want to reconsider the relevance of their drug policies. If your company is not a federal contractor or subcontractor, and does not have positions that are “safety sensitive”, it may be appropriate to relax some of your policies. Keeping in mind that frequent use and abuse of alcohol and drugs may negatively affect absenteeism, productivity, quality, and overall employee wellness, employers might cautiously consider:
Can an employer terminate an employee for marijuana use if medicinal or recreational use of marijuana is legal in the employer’s state?
Recent case law continues to support an employer’s right to maintain a drug-free workplace, including termination of an employee who is deemed impaired by a controlled substance while on the job or who tests positive for use of marijuana. Even in cases where the employee has used marijuana for prescribed medicinal purposes, courts have supported the employer’s right to enforce their company policies. Employers subject to disability laws such as the American with Disabilities Act, however, should provide employees using medicinal marijuana the opportunity to switch to another form of treatment before terminating employment.