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Marijuana in the Workplace

(posted: February 19th, 2018)

Marijuana in the workplace


Since 2012, recreational marijuana laws have passed in eight states and Washington, D.C.

Although the laws vary by state, what is true in every state is that the laws don't require employers to permit drug use in the workplace or tolerate employees who report to work under the influence.

Every state that has passed a recreational marijuana law strictly regulates use of the drug by, for example, banning its use in public, regulating where it can be purchased and limiting how much can be grown at home. Importantly, no state law forces employers to tolerate on-the-job use.

Official retail sales for recreational use in California started on January 1, 2018, but the rules are still in flux. Different cities have different regulations, such as opting to be "dry" towns.

It is now much easier to obtain marijuana, and in different forms than before. In addition to smoking the drug, people are using oils, creams, brownies, and more, purchased at a dispensary. How is an employer to know if what their employee is eating is just a regular brownie?

One thing employers can do is to start being more mindful of changes in performance and aware of indicators of intoxication. You should also maintain (or create) and enforce a drug-free workplace policy.

Alcohol use is legal, but companies have a right to prohibit employees from working under the influence of this substance. So, you can include working under the influence of other drugs, such as marijuana, in your drug-free-workplace policies. The point of these policies is to ensure that employees come to work ready and able to work and that they don't endanger others while they are working.

In the majority of states, including California, employers don't have to make accommodations even for off-duty medicinal use. The current case law in California makes that clear.

Some states, like New York and Massachusetts, do offer protections to registered medical marijuana users and may require that employers engage in an interactive process to see if a reasonable accommodation can be made in some circumstances, e.g., giving the employee a leave of absence until their course of medical marijuana is completed.

If an employee is using marijuana recreationally, their job is not protected by law.

Of course, marijuana is still illegal under federal law.

So, What Should Employers Do About Marijuana?

  • Review your state's laws on discrimination against marijuana users. Make sure your policies are consistent with state anti-discrimination statutes.
  • Continue to comply with federal regulations.
  • Review your drug-use and drug-testing policies to ensure that they clearly explain your expectations regarding impairment, marijuana use outside of company time and drug testing.
  • Make sure you are prepared to consistently follow your stated procedures.
  • As part of your review, articulate whether you wish to ban all employee drug use or merely impairment.

Note that the presence of THC (the active ingredient in marijuana) in the body may not indicate someone is presently impaired. While an employee may only feel the effects of marijuana for a matter of hours, THC can be detected for several days, or even weeks, if the employee is a frequent user.

Communicate your policy to all employees and clearly stated what is expected of them.

Train your managers about confidentiality, including drug-test results and requests for accommodations for medical conditions for which marijuana is prescribed (especially under state law).

This issue will only become more complicated, with the Justice Department threatening tougher enforcement of federal law, while states continue to pass legalization laws. We advise that you monitor developments in your state and periodically remind employees of your expectations and requirements and their responsibilities.

Please contact us with questions about handling marijuana in your workplace.

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