Marijuana laws are in a constant state of flux in this country, how do you stay aware of what’s legal and how do you keep your organization compliant?
Use of marijuana for medical and/or recreational purposes, legalized by state laws, is sweeping the country. Twenty-one states have passed laws allowing the use of marijuana by patients for medication purposes; nine in the past three years. Recreational use of marijuana was legalized in Washington State in 2012 (Initiative 502) and in Colorado (Amendment 64) beginning January 1, 2014, and more than a dozen states have legislation pending to legalize recreational use of the drug.
But people who medicate with marijuana in most states can still get fired for failing their employer’s drug test— even if they were medicating with it off duty and in accordance with state laws. A few states, such as Delaware and Arizona, do prohibit employers from terminating registered marijuana users if they test positive for marijuana, provided it is not being used in the workplace.
However, no provision in the Colorado recreational pot law requires employers to permit or accommodate “the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace.” Colorado’s law states that businesses can still prohibit marijuana use, and Colorado courts have ruled that employees can be terminated for using marijuana on the job, and in private, on personal time. And in Washington, employers can still test employees for marijuana use and enforce a drug-free workplace, even with policies covering after-hours use.
The key legal fact is that regardless of a state’s law, using marijuana remains a violation of federal law. Courts have ruled that in order to be “lawful,” the activity must be legal under federal and state law, and smoking marijuana remains prohibited under the federal Controlled Substances Act. So because marijuana remains illegal under federal law, any workplace that receives federal funding, does federal work, or is subject to federal regulations requiring the testing of safety-sensitive workers must continue to consider marijuana a prohibited substance, as specified in the Drug-Free Workplace Act of 1988. Federal workers are forbidden from using marijuana under the federal Controlled Substances Act.
Also, marijuana use is excluded from the Americans with Disabilities Act (ADA) protection, which adopts the criminal code list of controlled substances to define use of illegal drugs—and marijuana is on that list. Thus, a marijuana user isn’t considered to be a “qualified individual with a disability” because of that use.
Bottom line: an individual’s constitutional right in states allowing medical and/or recreational use of marijuana does not trump or supersede an employer’s constitutional right to maintain a drug-free workplace. In most states, employees can be fired after testing positive for marijuana use even if they are medically registered, haven’t smoked on the job and aren’t significantly impaired when an accident takes place.
The issue is fluid and confusing. Important court decisions will come later this year, more cases are heading to the courts, more state laws could be enacted, and a change in federal law toward marijuana decriminalization is not out of the question. The challenge to stay on top of the constant changes regarding marijuana requires experts that can effectively navigate this shifting landscape.
To ease the burden on your HR staff, consider utilizing the resources an expert in the field can offer you. Industry experts will stay abreast of the numerous regulations that exist, while employing specific technology to ensure that employees receive the correct test (hair, urine, or saliva). Additionally, experts can assist in writing or adapting organizational policies to ensure that they are current and that they reflect the most up-to-date stance for your organization.