The pace of change--in state law as well as public attitude toward marijuana in the workplace--has accelerated since our newsletter last May. "We are almost at the tipping point," says Tamara Cagney, President-elect of the EAP Association. "Sixty percent of Americans now live in states where medical marijuana is legal, 23 states have laws legalizing marijuana in some form and 17 states have decriminalized possession. Another seven states have legislation pending." Here in the District of Columbia, residents have approved the legalization of marijuana for recreational use. Unfortunately, some employees take that to mean marijuana is legal on the job. Last year, we wrote about the impact the changing landscape has on employment policies such as accommodation, workers compensation and impairment language. For a review click here.
Broadly speaking, there are three trends in state law:
• Those that say medical marijuana is allowed, but are silent with regard to employee and employer rights;
• Legislation that prohibits an employer from discriminating against an employee simply on the grounds that he or she is a medical marijuana card holder (or use knowledge of a medical marijuana card as reason to deny employment);
• And finally, laws that prohibit employers from taking any negative employment action based on a positive drug test.
In response to this patchwork approach, employers are demanding greater clarity and uniformity. Some advocate a change in marijuana's status from a Schedule 1, illegal drug to a Schedule 2 drug, which requires a prescription. Other employers are adopting a zero-tolerance policy. But according to Tamara Cagney, a change in status without a dependable way to determine impairment will only create more confusion and liability for employers. For now, legal decisions continue to favor the employer.
Education is Critically Important
For supervisors, who are often the first to be confronted with a substance-abuse problem, education is essential. Cagney stresses the importance of employment policies that are clearly stated and enforced. If your company or agency is regulated by the Department of Defense, Department of Energy or Department of Transportation--everyone from long-haul truck drivers to maintenance personnel--the law is clear: Medical marijuana is not an excuse for a positive drug test, regardless of state law. In the District of Columbia, area workers should be reminded that employees in federally regulated occupations or who work for organizations that receive federal grant money are clearly prohibited from its use.
Applying Past Lessons to Today's Workplace. Since 2013, more Americans favor legalization of marijuana than those that don't, and as the graph to the left shows, millennials lead the charge. In a Workplace Options poll, 70% of millennials report no problem working with colleagues who use marijuana. Substance-abuse professionals (SAPs) are less sanguine. They see trends that are reminiscent of the dangers of alcohol and tobacco use: advertising targeted at young adults; substance-abuse disorders that overwhelmingly involve working Americans; and a 10-year high in the number of positive marijuana drug test results among safety-sensitive jobs. The generational difference suggests a renewed need for education and training in the workplace to help employees recognize when marijuana use, like alcohol use, has become a problem.
If you'd like more information about this topic, or would like to consult with one of our certified Substance Abuse Program (SAP) professionals, please contact EAPA.
We'd like to acknowledge Tamara Cagney, President-elect of the EAP Association, for her contribution to this article. Edited by Greg Kelly.
COPE was a founding member of the Workplace Collaborative, a national, invitation-only, collaborative of EAPs established in 1994. The Collaborative is composed of independent organizations representing the best-in-class approaches to employee assistance. This group of innovative thinkers are passionate about excellence in the EAP field and committed to being a model for the industry.
If you are interested in knowing how marijuana laws may be impacting employment policy in other states, contact us at email@example.com. We'd be pleased to put you in touch with a Collaborative member.