In a November 2014 ballot initiative, residents of the District of Columbia overwhelmingly approved the legalization of marijuana for recreational use. The law, which officially took effect in late February, permits residents who are 21 years of age or older to possess and use small amounts of cannabis--with some limitations (for facts on the DC marijuana laws click here). But as is the case in the many states that have legalized or decriminalized pot, the change in the law has created difficult new challenges for workplace managers and supervisors.
For now, most employers continue to look to federal law for guidance in crafting employment policy, and under federal law, possession and use of marijuana is still illegal. D.C.-area workers especially should note--and supervisors should reiterate--that employees in federally regulated occupations or who work for organizations that receive federal grant money are clearly prohibited from its use. (DC residents who work in Virginia should be reminded that the laws have not changed and marijuana possession and use is still prohibited there). For organizations that aren't governed by federal mandates, it is important to have a clearly stated policy and to inform workers of the consequences of violations.
Determining "Impairment" in the Age of Legalized Marijuana
If you suspect a worker is abusing the drug in the workplace, be aware that safety terminology such as "impaired" and "under the influence" is increasingly vulnerable to court challenge. That is because, unlike with alcohol, there is currently no accurate test to determine impairment in a reliable way. The most common testing methods now available, notably urine tests, detect metabolites, marijuana's active ingredient, weeks after its use and long after any impairment effects can be determined.
The U.S. Dept. of Justice has already affirmed that a positive test for metabolites, "does not indicate recency, frequency, amount of use or impairment." Alternative language under consideration by employers reads," any detectable amounts above the cutoff levels of illegal drugs (state and/or federal) in the system while at work."
Medical Marijuana and Employment Policies
Most state laws with respect to medically-sanctioned pot use (including the District of Columbia and Maryland) are silent on workplace policies such as pre-employment, testing, accommodation, workers' compensation and insurance liability. But with employers continuing to rely on marijuana's status as a Schedule 1 federally-prohibited drug, there are gray areas that supervisors need to be aware of or face possible trouble. Among them are:
• Medical Marijuana and Testing. Even when impaired performance is not in doubt, states that protect card-carrying medical marijuana users--like Minnesota, Delaware, New York, Arizona and Maine--prohibit supervisors from taking disciplinary action based on a positive drug test. In these states employers must determine the implications of a positive drug test in view of their state laws.
• Accommodation and the Americans with Disabilities Act (ADA). If you have a state-permitted medical marijuana user in your workforce, you may also have an ADA-protected individual, even though marijuana is unlawful under federal regulations. The underlying medical condition may trump a prohibition against medical marijuana use. Under New York state's Human Rights law, for example, medical marijuana users are "disabled." As a result, under the state ADA, employers must engage in an interactive process to determine reasonable accommodation.
• Workers Compensation. Because medical marijuana is not an approved medication by the FDA, employers' and workers' comp insurers are generally prohibited from reimbursing employees for medical marijuana. However, in two recent cases in New Mexico, a court found that the employer had to accommodate and reimburse an employee for their medical marijuana use through their insurance carrier. Colorado, Michigan, Montana, Oregon and Vermont specifically prohibit workers' comp insurers from paying for medical marijuana.
In Summary. In most states, employers are free to discipline employees who use marijuana as it affects the safety and welfare of the workplace. And for now, employers can continue to rely on the drug's federal classification as a Schedule 1 controlled substance. However, the speed and complexity with which states have begun to legalize its use suggests that employment policies will need to adjust, and to steer clear of legal issues, they should be clearly stated and enforced in a uniform and even-handed manner.
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 COPE at 202-628-5100.
We'd like to acknowledge Tamara Cagney, President-elect of the EAP Association, for her contribution to this article. Edited by Greg Kelly.