Does Your Company Have a Blanket Marijuana-Use Prohibition? It’s Time to Revisit

As pot gains legitimacy, employees may now qualify for ADA protections for medical use

MarijuanaAs you’re likely already well aware, mainstream support for legalizing marijuana use is growing, with nine states/territories now permitting both recreational and medical pot use. But do you know how significant this trend is for those who recruit, hire, and manage employees?

Now that most states are regulating the way marijuana can be used and purchased and at what potency, Human Resources professionals need to understand these limits—or risk running into legal problems.

For instance, in the AudioSolutionz webinar, “Marijuana in the Workplace: How the Laws Have Changed After Legalization,” employment law expert Jennifer Komsky outlines the challenges to keeping your workplace drug free—including how to legally conduct drug screenings and what to do if an employee tests positive.

Understand the Sweeping Legalization Trend

Recreational cannabis is now legal in Washington, Oregon, California, Nevada, Colorado, Vermont, Massachusetts, the District of Columbia, and Maine. And medical pot use is legal in 29 states. That leaves just four states—Idaho, South Dakota, Nebraska, and Kansas—in which marijuana use is prohibited. Further, illegal use has been decriminalized in a handful of states ranging from Nebraska to Delaware.

Movements are afoot to spread full legalization, notes industry publication High Times, with efforts anticipated in Connecticut, Delaware, Illinois, Kentucky, Michigan, Missouri, New Jersey, Ohio, Oklahoma, Rhode Island, and South Dakota.

Why the push? For New York, notes the New York Post, “it is inevitable, because, as neighboring states approve legalization, tax-hungry New York lawmakers will be jonesing for the revenue that comes from legalized weed.”

But as states and many users know, while weed may be legal in your hometown, it is still illegal under federal law.

“Under federal law, cannabis is treated like every other controlled substance, such as cocaine and heroin,” reports Safe Access Now, a pro-legalization organization. “Federal cannabis laws are very serious, and punishment for people found guilty is frequently very steep.”

Craft a Clear Drug-Free Policy

Marijuana may be legal in some states, but you can still maintain a drug-free workplace. No state law forces an employer to tolerate pot use in the workplace, clarifies Komsky.

“Just as employers are ill-advised to permit alcohol use at the workplace, so too with recreational marijuana,” stated attorney Jill Cohen in a Society for Human Resource Management (SHRM) article.

But there are important considerations when applying your workplace rules.

For instance, a few states afford certain protections to registered medical marijuana users. In other words, if an employee in one of these states is using pot with a medical card, her employer can’t fire her for that.

On the other hand, the SHRM article continued: “Employers don’t have to tolerate on-the-job intoxication even if a worker is using marijuana for medical reasons, so accommodations might include additional time off or a leave of absence for the period the worker needs to use the drug.”

But Be Prepared to Make Pot-Use Accommodations

Recent state laws are pushing the line on medical marijuana use, explains HR Drive. Many newer statutes state the need for employers to accommodate medical marijuana use, although at the federal level medical marijuana is not detailed under the Americans with Disabilities Act (ADA).

Smart idea: Review your company policy in light of changing legislation.

“States that have reasonable accommodation laws for medical marijuana cardholders such as Arizona, Connecticut, Delaware, Maine, Minnesota, Nevada, New York, Rhode Island are problematic and a concern for employers with blank prohibitions on medical marijuana users,” noted Bob Capwell, chief knowledge officer at Employee Background Investigations in a HR Technologist article.

No matter what state you are in, take a fresh look at your company’s drug policy with these actions in mind, Entrepreneur advised:

  • Clarify “under the influence”
  • Specify procedures and penalties
  • Require employers to self-disclose if they want ADA accommodations
  • Protect those who self-disclose
  • Educate employees and refer them to resources for the treatment of abuse
  • Remain consistent in practice and policy application

A sound policy, says Komsky, will also protect you against disability discrimination claims, meaning this key step should not be put off.

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Jeff Schmerker
About Jeff Schmerker
Jeff has extensive professional experience writing on a variety of topics, from pharmaceutical research to environmental history. He has published more than a half-dozen books, and he has worked as a newspaper reporter, magazine editor and restaurant reviewer. He lives in Missoula, Montana with his wife and son.