Legal use of marijuana for medical purposes raises important and difficult questions for employers. Although only some states have legalized use, the issue is likely to become more widespread over time.
In a recent Safety.BLR.com poll, safety professionals were asked, "Should medical marijuana use in the workplace be a concern for employers?"
- 80% said yes, because of liability and safety issues.
- 12% said yes, because federal law still prohibits it.
- 7% said no, because state law protects qualified users.
- 1% said, no, because the public is now more accepting.
Currently 17 states and the District of Columbia have legalized medical marijuana. California was the first state to allow such use, in 1996, and its law may be the least strict in the nation. Connecticut is the most recent; its law went into effect October 2012. The others are Alaska, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.
Most of them have legalize marijuana for "qualified patients," which are defined differently by different states.
Employers Responsible
Most employers in states where the drug is legal bar employees from using it during the workday and from bringing it into the workplace. But employers’ responsibilities go well beyond that.
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Employers in states with medical marijuana laws can still prohibit the use of marijuana in the workplace. Furthermore, employers that have "zero tolerance" workplace substance abuse policies can continue to rely on the fact that marijuana is illegal under the federal Controlled Substances Act, even if individuals using medical marijuana may be released of criminal liability under certain states’ laws.
However, these state laws may continue to pose accommodation issues under state disability discrimination statutes for use outside the workplace.
Federal Law
Under OSHA’s General Duty Clause, employers must maintain safe workplaces. OSHA specifically includes impairment by drugs (legal, prescribed, or illegal) as a potentially avoidable workplace hazard. So any employee who is impaired must be prevented from injuring himself, co-workers, or members of the public, especially with a motor vehicle. And, employers must identify all safety-sensitive jobs in the workplace—such as those working with moving machine parts or driving company vehicles—and barring medical marijuana users from those jobs, even if they show no signs of impairment and never use the drug during work hours.
Furthermore, the Omnibus Transportation Employee Testing Act requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries.
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Practical Tips
- It is advisable to treat employees who self-identify as medical marijuana users and test positive for marijuana use very carefully. If an employer can show that the employee was impaired at the time the drug test was administered (i.e., the test showed elevated levels of drug use consistent with impairment, or the employer had a reasonable suspicion of impairment based on the employee’s appearance or behavior), the employer will most likely be able to prove a violation of its drug policy.
- Train supervisors to be responsible for monitoring employee performance, staying alert to performance problems, and enforcing the drug policy. However, it is not the job of supervisors to diagnose problems or counsel employees.
- Employees need to know all they can about the program in order to use and benefit from it. Effective education addresses company-specific details about the policy and program through workplace displays, brown-bag sessions, and new-hire orientation.
"This isn’t going away," says Dinita L. James, a partner in labor and employment firm Ford & Harrison’s Phoenix office. "The public’s perspective is increasingly favorable toward marijuana use, especially medical use. Employers should avoid having a knee-jerk negative reaction to marijuana use. Remember that alcohol and some prescription drugs, all of which are legal, can also impair employees. If increasing numbers of state laws lead employers to grapple with the issue, that’s a good thing."