WHAT DO EMPLOYERS DO ABOUT LEGAL MARIJUANA?

Written on May 13, 2016.

Employers are now confronting several issues involving off-duty marijuana use. First, there is a new type of "synthetic" marijuana that is not prohibited by many laws. Second, many states have passed laws allowing medical use of marijuana. Third, in at least three states, state law allows the legal use of marijuana for recreational purposes. These issues pose dilemmas for employers, particularly since, unlike other drugs, marijuana can show up in drug testing for weeks after it is used. Further, many states have laws protecting employees who take part in legal activities outside the workplace. On the other hand, certain employers such as federal contractors and those involved with the Department of Transportation, must comply with federal zero-tolerance drug standards.

The courts have addressed and resolved many of the issues, but some questions remain. There is case law in Colorado, where recreational use of marijuana is legal, indicating that marijuana usage is not a protected "lawful activity" because pot is federally prohibited. The plaintiff was a quadriplegic who was authorized to use the drug medically, and had a particularly appealing case, and the appeals court ruling upholding the employer's policy was by a divided court. The case is being appealed to the Colorado Supreme Court.

Most commentators believe that as long as marijuana usage is prohibited by federal law, that employers may prohibit such usage and discipline employees who test positive. It is suggested that this point be made clear in company policies, including the desirability of referring specifically to the federal prohibition of marijuana in their policies.

There are still difficult policy decisions for employers to resolve, since the case law will continue to develop, particularly in the case of medical marijuana uses. Employers are reluctant to become "test cases" while at the same time they do not want to tolerate marijuana usage. This is a particular problem for multi-state employers, who may have to either adopt state-by-state policies or make special exceptions in their policies for some states.