Marijuana at Work
Marijuana has become more accepted and radically more prevalent in America with twenty five states decriminalizing possession for medical use and four states, including Washington, DC, decriminalizing possession for recreational use. Although still illegal on a Federal level, many employers state decriminalization is causing a ripple effect since Colorado, Oregon, Washington, and Alaska made recreational marijuana legal. This has created confusion in employment laws and policies and has made human resources and executives start to see smoke.
“This uncertain regulatory scheme places employers in the delicate position of attempting to comply with divergent laws while maintaining order and safety in the workplace,” said Timothy P. Van Dyck and Nathanael Nichols, attorneys at Edwards Wildman Palmer LLP in Boston.
Below are a few things to know when dealing with marijuana in the workplace – specifically creating and enforcing policies around drug-testing in the workplace.
Marijuana use is still illegal under federal laws. Therefore, any workplace that receives federal funding or is subject to federal regulations requiring the testing of safety-sensitive workers (i.e. Department of Transportation), must consider marijuana a prohibited substance according to the Drug-Free Workplace Act of 1988. The legislation states that if you have a federal grant or contract then you must conduct a drug-free workplace. This law was tested by Dish Network employee, Brandon Coats, who was fired in 2010 after testing positive for marijuana. Coats is a paraplegic who has been using prescribed marijuana for years to deal with his muscle spasms and pain. He was consumed by a legal battle since 2010 that has caught national attention. The Supreme Court ruled that federal law supersedes state law, and upheld the lower courts’ ruling of the firing of an employee for using medical marijuana while not on duty.
Locally, Colorado’s Amendment 64 states that it “is not intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or affect the ability of employers to have policies restricting the use of marijuana by employees.”
Colorado’s Drug Testing Laws
What can an employer do if an employee shows up for work smelling like marijuana?
Colorado Code §25-5-330 et seq. states that employers can conduct “…random testing and testing on reasonable suspicion, as part of fitness-for-duty exam, after on-the-job injury, or as follow-up to a rehabilitation program. Employees must receive 60 days’ advance notice of testing policy, which must be conspicuously posted.” If an employee tests positive, it’s up to the employer to decide how to handle the results.
Lawyers are a Must
Although one in five Colorado companies have implemented more stringent “on the job drug testing” since , (according to a survey done by Mountain States Employers Council) this may or may not be the right thing for your company. Talk to a lawyer, who knows your state’s laws inside and out, about your drug-testing policies as well as drug-use and discrimination. Make sure your policies are consistent with state regulations and your company is being compliant.
Make sure your employees are explicitly clear on all of the policies and expectations regarding impairment, marijuana use on and off the clock and drug testing. Let them know if/when they change and educate employees that policies are simply to ensure the safety and productivity of the organization.
As you can see this is a muddy subject and it will surely evolve as the laws have. Our advice is to keep abreast of the current status, don’t get overwhelmed and seek advice of an expert when needed!