Changing Marijuana Laws: What HR Professionals Need to Know
With the evolution of state-specific legislation related to marijuana usage for medicinal and, in some cases, recreational use, it’s natural that some HR professionals are starting to wonder how this might impact their drug testing and substance abuse policies. Danielle Urban, a partner in the Denver office of Fisher & Phillips LLP, a law firm representing employers nationally in labor and employment matters, shared her expertise on this important topic.
Policy Impact
According to Urban, “In most states, the recreational and medical use of marijuana should not affect employer’s current drug and alcohol policies. Marijuana remains a Schedule I controlled substance under federal law. With few exceptions, most employers are not required to accommodate medical or recreational use of marijuana, and are not required to continue to employ employees who test positive for marijuana, even if the employee shows no signs of impairment at work.”
She points out, “No employer is required to allow impaired employees to work, regardless of the substance, be it medical marijuana or legally prescribed painkillers.”
Federal Compliance Obligations
Urban explains, “If you are an employer subject to federal drug-free workplace laws or federal safety regulations such as the federal Department of Transportation regulations, you must maintain a drug-free workplace and will need to continue to comply with federal drug-testing and reporting protocols.” This is true regardless of state law.
State-Specific Considerations
Urban points out, “A one-size-fits-all policy may not be appropriate if the employer has operations in states like Minnesota and Arizona, where employees in non-safety sensitive positions and positions not covered by federal drug-free workplace, federal department of transportation regulations or other safety regulations are protected from adverse employment actions if they are medical marijuana users.”
Drug Testing
There is no reason to change your drug testing policies in light of changes in state law. Employers in states where marijuana is legal for medical or recreational purposes can still require pre-employment, random and reasonable suspicion drug testing except for, as Urban points out, “states that specifically protect medical marijuana users such as Arizona and Minnesota.”
Urban states, “With the exception of states like Arizona and Minnesota, no employer is required to permit an employee who tests positive for marijuana use, regardless of impairment, to remain employed.” She adds, “Even in those states, however, employees subject to federal safety regulations or drug-free workplace requirements or who hold safety sensitive positions are not permitted to test positive for prohibited substances, including marijuana.”
Bottom Line
Urban states, “Unless you are an employer in a state that explicitly protects medical marijuana users from adverse employment action, such as Arizona or Minnesota, you are free to maintain and enforce zero-tolerance drug and alcohol policies in the workplace, and this includes marijuana used for medical purposes.”
Recommendations for the Future
Urban urges, “Employers should take this opportunity to update their policies and specifically address marijuana use, particularly medical marijuana, because many employees are under the mistaken impression that medical marijuana use is protected under the law and would be surprised to learn they could lose their jobs for a positive test result.”
She also emphasizes the importance of keeping up with legislative changes, stating, “Employers should stay abreast of state law changes, could subscribe to an HR service (provided by PEOs, HR organizations, or law firms) that provides legal updates. Consult with your HR provider or attorney to ensure policies are compliant with state and federal law.”
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