Legalized Marijuana – Implications for Workplaces

115024599Recently, celebrity chef Nigella Lawson was ignominiously barred from flying to the United States – allegedly over revelations about her occasional use of cocaine and marijuana. Simultaneously, America has been witnessing a concerted move to decriminalize the use of marijuana. Scientific American and many others have gone on record to state that marijuana does not rank very high on addiction, with 9 percent becoming addicted and dependent; when compared to substances like nicotine (32 percent), cocaine (23 percent) and even alcohol (15 percent). Many are expressing concern for the 650,000 youngsters earning themselves criminal records each year over the possession of small quantities of the illegal drug.

The use of marijuana for medical reasons is now legal in 20 states across America. Colorado and Washington (possibly to be followed by New Jersey and 15 other states) have also made it legal for recreation purposes. While issues like tax revenue, individual freedom and the acceptability of this move are beyond the purview of this blog, the implications of these developments for workplaces makes it well worth a discussion.

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Effects of Marijuana
While there is a great deal of contradictory scientific research, most agree that using marijuana affects a person based on the amount imbibed and the person’s own mood, personality and physical attributes (like weight). It has been shown to adversely affect the user’s alertness, reaction time, short-term memory, thinking abilities, concentration, sensory perception, balance and coordination, and ability to perform complex tasks. These effects can last anywhere from two to six hours, which makes it a matter of concern for any employer that wishes to avoid liability and maintain productivity.

Employer Reaction
For employers, the current status of the legalization of marijuana has muddied the waters, and they are getting muddier! When taking a position on marijuana use, companies must factors in federal laws that consider marijuana to be an illegal substance and the varying state laws that allow it. Court cases are building, and precedents are emerging. Most decisions are based on the notion that a primary duty of an employer is to ensure the safety of their workers at the workplace. When an individual reports to work, it is the responsibility of the employer to protect against anything that impacts an employee’s ability to do their job or that presents a safety risk. As such, companies can prohibit employees from coming to work under the influence. This position is even specified in the Colorado legislation that legalized marijuana for recreational use.

So if you are working for a company with a professed zero-tolerance drug-free policy, your use of any drug had also better remain at zero, irrespective of the state in which you live. In Colorado, companies that have a zero-tolerance policy were found to have made their screening efforts more stringent, to avoid the risk and liability of having worker safety compromised.

Many employees are unaware that companies in states that have legalized the drug can – and will – enforce zero-tolerance drug-free policies that can result in terminations for violations. Some things that workers and employers should keep in mind:

  • Tests can’t determine exactly when the drug was ingested. Marijuana traces can remain in the human body for weeks, so employers don’t know whether a positive test resulted from on- or off-duty use. Consuming just at home provides no protection if your workplace drug test comes back positive for marijuana.
  • Exceptions do not have to be made for medical marijuana. State supreme courts in California, Washington, Montana and Oregon have all rejected claims by employees seeking protection under medical marijuana statutes.
  • The Americans with Disabilities Act does not protect against termination for the use of medical marijuana. While medical marijuana patients may have grave and debilitating disabilities, a “qualified individual with a disability” under the ADA does not include an individual who uses a drug that is illegal under federal law.
  • Companies that do allow use of marijuana at work, or tolerate workers reporting to work under the influence, face the same liability for accidents and negligent hiring claims as when allowing alcohol consumption at work.

We encourage all companies to examine and revise their corporate code of business standards and employee policy handbooks to explicitly state how marijuana will be dealt with in the workplace. The policy should take into consideration and explicitly address:

  • Permitted and prohibited use and drug testing in organizations with operations in multiple states. Does the policy differ in any way for workers at facilities in states that have legalized marijuana?
  • Establishment of a drug testing policy that has been legally reviewed to ensure compliance with state law.
  • Does the policy differentiate between testing positive and being under the influence?
  • An associated program for communicating the policy to all employees and clearly stating what is expected of them.
  • A training program for managers to understand how to properly identify employees under the influence, and how to handle reasonable suspicions. The program must also cover the handling of confidential employee information.
  • Compliance with State disability laws that may prohibit discrimination against employees or applicants who use marijuana for medical reasons.
  • Actions that must be taken by workers to demonstrate legitimate medical use.
  • Regulatory compliance in a state where marijuana use is permitted and state law protects employees from termination for engaging in lawful off-duty conduct.
  • Implications of your policy on federal contracts that could be lost if the company is found to be in violation of federal law.
  • The flow-down of the corporate policy into the contractual agreements with staffing suppliers and the temporary workers that they provide.

MORE: How staffing firms can help tackle the growing drug abuse problem

Lalita Vempati

Lalita Vempati
Lalita Vempati is a marketing communications specialist at DCRWorkforce. She has extensive experience in managing operations, human capital and training and development.

Lalita Vempati

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