Using medical marijuana at work is no longer the taboo subject it used to be. With the increased legalization of marijuana nationwide and the growing social acceptance for its medicinal and recreational use, employers are grappling with the best way to address this issue with employees and job applicants.
Though marijuana is still illegal under federal law, more than half of U.S. states have legalized medical marijuana, and many others are considering bills that would do the same. In some of these states, workers may find protection under disability or leave laws from being fired or rejected from a job, or discriminated against due to marijuana use.
Nevada recently became the first state to ban employers from refusing to hire applicants who fail a marijuana test. The law extends to all applicants, except those applying for firefighting or EMT jobs, federal jobs or positions requiring the operation of a motor vehicle.
These rising contradictions between federal and state laws have sparked several lawsuits against businesses that have refused to accommodate medical marijuana use among employees, or fired those who tested positive for it. Though the courts have generally sided with companies in these cases, the legal ambiguity has left many employers hazy on what policies they can set for managing medical marijuana use in their workforce.
Medical Marijuana in the Workplace: Clarifying the Rules
Most businesses do not permit employees to use marijuana for any reason and want to keep it that way to maintain a safe, productive workplace, says Michelle Thompson, director of human resources for XMI.
Even in states with medical marijuana laws, employers can still ban the use of marijuana at work and prohibit employees from using it while on the clock.
“Alcohol is legal everywhere, but that doesn’t mean employees can show up at work under the influence,” Thompson says. “The same goes with marijuana, though it can stay in their system for much longer.”
Zero-tolerance policies are common in federally regulated industries such as healthcare and transportation and other industries with safety concerns. If a business has such a policy in place, an employer has a right to take action against workers who show up under the influence or test positive for marijuana, even if they have a medical prescription for it.
Employers should never ask job applicants about medical marijuana use, but they should decide whether drug testing is necessary and clearly communicate what constitutes a failed test.
In industries like production and agriculture that depend heavily on manual labor or struggle with worker shortages, some businesses have chosen to relax drug testing rules.
“Some have stopped drug testing altogether, or they may still do it, but make an exception for those who test positive for marijuana,” Thompson says.
Navigating Changing Marijuana Laws
With more people turning to medical marijuana to relieve conditions from anxiety and chronic pain, to the side effects of serious illnesses such as cancer and Crohn’s disease, what’s the smartest way to handle weed in your workforce? Stick to these ground rules from the Society for Human Resource Management:
- Strive to maintain a drug-free workplace to protect the safety and well-being of employees and customers and prevent drug-related accidents or injuries among workers.
- Make sure your drug-testing and screening practices are consistent and comply with emerging laws about medical marijuana in your state. In some states, you may be required to accommodate medical marijuana use outside of work. But you can still require employees to provide the appropriate medical certification and refrain from using medical marijuana while on duty.
- If your state covers medical marijuana patients under disability laws, confirm whether any positive drug tests are connected to medicinal use before making hiring decisions. Give applicants an opportunity to disclose whether they are taking medical marijuana to treat a disability.
Make sure you are clear in job applications, employee handbooks and other internal communications about what conduct is unacceptable in the workplace in regard to marijuana use. Caution is generally the safest path for companies to take, Thompson says.
“As long as marijuana use is illegal federally, the best practice is to have a zero-tolerance policy as opposed to being more flexible,” she says. “That’s the best way to protect your business and those you are serving.”