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 enforcing a drug-free workplace. Regardless of the reason, state laws legalizing marijuana create a need for action including:

  • Reviewing drug policies and verifying that actual practices are consistent with company policy and current state laws
  • Incorporating language specific to use of marijuana into current drug policies, including a standardized practice for dealing with applicants and employees who test positive
  • Reviewing pre-employment practices, such as language used in job postings and offer letters to ensure they properly notify applicants of the company drug policy and drug testing policy

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:

  • Eliminating random drug testing or modifying pre-employment screening
  • Focusing on employee behavior rather than drug testing when on-the-job drug use is suspected
  • Incorporating policy language specific to the use of marijuana that is modeled after alcohol policies in states where recreational marijuana use is legal

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.

What’s next for employers contending with recreational or medicinal use of marijuana?

  • Evaluate employee policies to ensure alignment with company practices and current law; consider addressing marijuana separately where appropriate.
  • Inform employees of the company’s current policies and provide an opportunity for open, two-way communication on the topic.
  • Equip managers to explain and enforce policies, recognize impairment and signs of abuse, and handle employee situations and questions.
  • Continue to monitor the legal environment and changing regulations.