With marijuana now slowly being legalized in more states, employers should now become aware of their rights and obligations about marijuana in the workplace. Here are four things they need to bear in mind:
- Employers have the option to implement drug-free workplace policies.
In most states where recreational or medical marijuana has been approved, zero-tolerance policies are explicitly allowed. Therefore, every employer must make sure that they have established a drug-free workplace policy. For their protection, they should communicate the policies to all workers and direct employees to sign a form acknowledging their receipt of the same.
- Employers have the right to terminate employees who use marijuana in the workplace.
Recreational marijuana has been approved in Alaska, Colorado, Oregon, Washington, and the District of Columbia. According to the Federal Controlled Substances Act, marijuana is still a Schedule 1 drug and hence prohibited under federal law. Because of this, employees found using marijuana within the workplace premises may be held liable to the point of job termination.
- Careful consideration for the marijuana holder is required.
While marijuana is still illegal under federal law, medical marijuana has been legalized in almost half of the U.S. The problem with most employers is that the laws in at least three states (Arizona, Delaware, and Minnesota) prohibit termination of employees for testing positive for marijuana metabolites alone as long as they possess a valid medical marijuana card. Employers should prove impairment of work by the employee before the latter can be discharged for testing positive for marijuana metabolites.
- Marijuana use in the workplace is not a disability accommodation.
At the moment, it is unclear how the American with Disabilities Act’s (ADA) reasonable accommodations requirement will interact with marijuana laws. However, once employees inform their employers that they are using medical marijuana, the employers should check if the employee is potentially disabled pursuant to ADA. However, while it does not require accommodations based on the use of medical marijuana, it does offer protection for the disabled employee.