January 22, 2020
What employers should know about marijuana safety and impairment policies
Laws on marijuana are changing rapidly in the United States, and as an employer you may be wondering what this means for you. It’s important to know your options for creating and enforcing safety protocols and policies, taking into account legal marijuana use.
Although many states are starting to legalize medical marijuana, recreational marijuana, or both, the federal government still classifies marijuana as a Schedule I or illegal drug.
Navigating federal and state differences
An employer’s legal safety and impairment policy options may depend on the level of operations or relationship the company has with the federal government.
“If an employer has a contract with a federal entity, receives federal funding, or is required to drug test under federal law, it cannot operate in violation of federal law, even if state law would find it a permissible activity,” said SFM Vice President and General Counsel, Kathy Bray.
It’s not as cut-and-dried for non-federally contracted or funded operations.
In short, Bray said that if federal laws are not intersecting with work operations in any way, the state law will govern the employer’s actions and policies. Employers must understand and comply with the statutory regulations relating to marijuana use within the states in which they operate.
For example, in Minnesota where medical marijuana is legal, employers may not discriminate against applicants or employees based on their status as a registered medical marijuana patient. This extends to employees who may test positive for (medical) marijuana on a drug test, unless it would cause the employer to violate federal law, or lose money or licensing-related benefits under federal law.
Most states do not require employers to tolerate off-duty recreational marijuana use. However, some states are moving toward permitting legal off-duty marijuana use in some circumstances.
The variation and inconsistency in laws regarding medical and recreational marijuana use in the workplace make it particularly difficult for employers operating in multiple states to establish company-wide policies and practices.
Tips to create and enforce safety programs and policies
The changing legal status of marijuana in the U.S. provides a great opportunity to refresh your safety program and workplace policies.
These four actions are a good starting point:
- Understand the law
If a state you operate within has legalized marijuana, whether medical and/or recreational, you must take the time to understand how federal and state laws affect your operation.
- Revisit job descriptions
Regularly revisit your job descriptions to see if they are reflecting the current equipment you have, any technologies you’re using and the scope of the jobs that may intersect with a position. Make changes, if needed, to reflect the reality of the workplace so you can hire the best candidates for the job, and then provide the training they need to perform the job safely.
- Be fair and consistent with all employees
If you declare your workplace drug-free, you need to apply that standard across the board, taking into consideration legal limitations on any blanket policy.
- Document violations
As impairment and legality come into question, the most important thing to come back to is the safety of the workplace. If someone is practicing unsafe behavior, regardless of any drug use, you should act on it. No matter the cause of or legality of the substance causing the impairment, you can address safety concerns, and it’s important that you do. You may need to address that behavior separately from the substance that may be contributing to it.
The growing acceptance of marijuana use in the U.S. has forced lawmakers and employers to address its use and adapt. Seek legal counsel when implementing workplace policies that may impact marijuana users due to the quickly changing legal landscape.
You can find a state-by-state summary with references to governing statutes at nolo.com
This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.