Contracting Firms Should Update Drug-Use Policies as More States Legalize Marijuana
The emergence of legalized marijuana in society elicits many different opinions. But when it comes to your business and the safety of your most important asset—your employees—marijuana at work is not a moral or ethical issue. It is simply a business decision.
Marijuana has financial and human ramifications, including increased absenteeism, pilferage, accidents, violence, sexual assaults, medical benefits and workers’- and unemployment-comp claims. It also has been attributed to increased turnover, lower morale and major lawsuits.
Years of repeated studies have shown that a marijuana user can have difficulty with thinking, problem-solving, motivation, coordination and mood swings. Long-term use is linked to mental illness, an inability to learn and depression, as well as damage to the brain, respiratory and immune systems. But does it have medical value? The main psycho-active, mind-altering part of the cannabis plant is tetrahydrocannabinol (THC), just one of the 483 known chemical compounds in the plant. Studies are beginning to show that it might help with conditions such as epilepsy, multiple sclerosis, cancer and AIDS. But that is not due to the THC but, rather, to other chemicals in the plant such as CBD and CBN, both of which have weak psychoactive reactions or none at all.
It is these chemicals that may help with anxiety, pain and decreased appetite. We are learning that some of the chemicals in the marijuana plant have great potential for the medical field, but without the negative physical, mental and behavioral effects associated with THC.
State vs. Federal Laws
Marijuana laws continue to create confusion, as well. The Drug Enforcement Administration classifies marijuana as a Schedule 1 controlled substance. And because it is illegal on the federal level, researchers haven’t been able to study marijuana until recently. To be defined as medicine in the U.S., the FDA requires drugs to undergo clinical trials with thousands of human subjects, which has not occurred.
Also, the drug’s well-defined, measurable ingredients are not consistent from one unit of marijuana to another. Taking 2 milligrams of Valium once a day for the same disorder produces a consistent application, even in different people. But there is no such comparable measurement with marijuana. Simply put, marijuana stays on the Schedule 1 list due to its potential for abuse, the lack of currently accepted medial use and potential for safety hazards.
What the Courts Say
The courts maintain that state law is subordinate to federal law; therefore, federal statutes supersede. Whether it be marijuana cases related to discrimination, disability personal rights and so on, the courts have almost unanimously decided in favor of the employer, even if the employee has a medical marijuana card. In addition, workers’ comp has not paid a claim solely based on the injured party having a medical marijuana card.
The Americans with Disabilities Act does not cover “current use,” so a marijuana user is not a “qualified individual” with a “disability,” even with a medical marijuana card. But stay tuned, because case law is shifting. Most states with legalized marijuana have no restrictions on an employer’s right to maintain drug and alcohol-free workplaces. They also do not have to allow the use, consumption, possession or effects of marijuana at work by an employee or applicant, even one with a medical marijuana card.
Therefore, a violation of the company’s drug policy, even a first offense, can serve as the basis for discipline. That can include termination and/or an offer of assessment, counseling and treatment. It also allows federally contracted employers to comply with federal testing requirements, such as the Federal Motor Carrier Safety Administration’s, without fear of violating state laws.
As a business decision, it’s imperative for employers to have a comprehensive, up-to-date, drug-free workplace policy that meets federal laws and policies, as well as statutory and case law for the state or states in which the company operates. Such a policy gives a company the legal clout to handle issues when they arise. It is important to spell out the firm’s position on medical and recreational marijuana.
A policy statement could say: “In accordance with federal law, the company prohibits any employee from the use, possession, cultivation, manufacture, distribution, dispensation, sale or storage of marijuana under any circumstance, including being under the influence of marijuana while on company property or engaging in company business, regardless of whether the employee has a medical marijuana card or a prescription for medical marijuana use.”
Here are some ways to approach potential marijuana users in the workplace:
- Have clear rules and protocols for the reporting of prescription drugs that may affect employees’ ability to do their safety-sensitive jobs.
- When new hires or on-roll employees state that they have a medical marijuana card, determine if they’re “able to fulfill the essential job function in a consistent state of alertness and safe manner” and then accommodate them if there is no hardship to the company as a result.
- In the case of a positive test result for marijuana, respond to it as a policy violation, not unlike any other illegal drug, and take appropriate actions. In some states, an employee cannot be terminated for a first positive test.
- Due to the recent shift in court decisions and state laws, it is important to continue to be aware of discrimination and disability laws in the state or states in which the company operates.