Within the last few years, medical marijuana has become legal in over 30 states. Recreational marijuana is legal in eight states. It appears that this relaxation of thinking on marijuana is a new normal which has ramifications on American society in many ways, including organizational workplaces. During 2017, more than one court case was litigated based on employees being terminated after testing positive on employer-driven drug tests for the lawful use of medical marijuana. In July of 2017, an individual won a court case after it was determined that the New Your City Taxi and Limousine Commission could not withdraw their licensing for a driver who tested positive because his use of drugs fit under the parameters of the New York State Compassionate Care Act. (A “Smokey” Legal Issue for 2018 – Medical/Recreational Marijuana in the “Workplace”, Barbara E. Hoey and Alyssa Smilowitz, November 21, 2017)
Currently there are more questions than answers and this subject is evolving in courts throughout the United States. The debate of the federal illegality of marijuana vs. the legality of medical, and even recreational, marijuana in various states has raised numerous questions on how this will affect the workplace. There is uncertainty regarding whether the use of medical marijuana denotes a disability and therefore is considered a protected class under federal and state anti-discrimination laws. Would medical marijuana ultimately reflect a reasonable accommodation under the American’s with Disabilities Act and its Amendments Act (ADAAA), even if it’s clear that current drug users are not covered under the ADAAA? What would happen if an employee fails a drug test due to medical marijuana, knowing that there is a clear difference between the length of time a person could be under the influence of the drug and the length of time that Tetrahydrocannabinol (THC), which is the active ingredient in marijuana, remains in one’s body. In the case of frequent users of medical marijuana, THC may be detected for days or weeks following usage. Furthermore, due to this factor, the value and reliability of random drug testing is being examined.
Even greater questions are raised as employers consider the necessity for risk management in determining which jobs should be classified as “safety-sensitive”, and therefore subject to drug testing. The Department of Transportation (DOT) and the Federal Aviation Administration (FAA) have clearly stated their policies for safety-sensitive jobs such as drivers and pilots. Most agree that employees who operate heavy machinery or people who hold the lives of other people in their hands, such as surgeons, should also be classified as safety-sensitive positions. What about other health care professionals or teachers of young children? And, if the federal law eventually changes to allow marijuana use, what will happen then?
While this article is not intended to predict the future and answer these questions, it should generate thought on traditional drug policies, such as zero-tolerance, and actions that employers may determine useful in this time of uncertainty.
The goal of zero-tolerance is to eliminate adverse conduct and performance of employees and provide an automatic punishment for violating organizational rules. For employee behaviors or actions that pose a significant risk to the organization, zero-tolerance policies remove subjectivity and bias from the decision-making and provide a clear process for managers that do not allow them to consider any extenuating circumstances. Consider a person who has been employed with an organization for several years. During that time, this employee has had exemplary performance, has worked hard, has gotten along with other team mates, and has never been disciplined. Now consider an employee who shows up late, only works at a minimum level and looks for any excuse to undermine the manager. A manager would be required to terminate either employee for violating a zero-tolerance policy without consideration for performance or behavior or the benefit of a progressive disciplinary action process.
There are multiple employers including federal contractors that are covered by the Drug-Free Workplace Act (DFWA). These organizations don’t have the ability to alter their zero-tolerance drug policies to accommodate medical marijuana usage. Other employers not subject to the DFWA, however, may consider the implications of relaxing their zero-tolerance drug policies, especially in relation to the use of medical marijuana. Employers are thoroughly researching their options and considering whether the risks including high benefits costs for employees who use drugs and the liability for accidents and workers’ compensation claims outweighs the risk of litigation.
Zero-tolerance may be the best option for an organization but it’s important that the organization not keep the policy just because they have always had it. Fear of the unknown and fear of change are not reasons to avoid a relaxation of a zero-tolerance policy. Taking an organizational stance through a zero-tolerance policy sends a clear strong message to both the internal and external stakeholders of that organization and may have ramifications in other areas such as employee relations, employee engagement and organizational culture that are not readily realized during the decision-making process. Therefore, employers who are not subject to the Drug-Free Workplace Act may want to consider flexibility by proactively treating employees individually and voluntarily providing accommodations for medical marijuana for those who are qualified to use it legally. They may also want to consider regarding the lawful use of medical marijuana in the same light as the lawful use of prescription drugs at least for non-safety-sensitive jobs, or consider revamping their zero-tolerance drug policy to a “no-impairment” policy which covers both alcohol and drug usage.
There are a few commonalities for employers between state statutes that have been enacted for the use of medical marijuana and the federal law prohibiting the use of marijuana. Primarily, none of the laws require employers to allow drug use in the workplace or tolerate employees who present a risk to themselves, other employees or the organization by reporting to work under the influence. In fact, multiple courts have upheld employer rights. The United States Court of Appeals for the Sixth Circuit determined that “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.” The United States Court of Appeals for the Ninth Circuit clarified that “the ADAAA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”
As employers consider policies and procedures other than zero-tolerance, they may soon realize the value of developing an interactive communication process with employees who are dependent on medical marijuana. Employers who engage employees in honest discussions in the attempt to accommodate employees with disabilities may consider the use of paid or unpaid leave for short periods of medical marijuana usage if it would not be detrimental to the organization and if the employees work schedule may be reasonably modified to accommodate.
If an organization relaxes their policy on zero-tolerance for drugs and an employee tests positive for marijuana, the employer may then begin a process of verifying the employee’s participation in a medical marijuana program, evaluating the employment situation and determining accommodations, if needed, based on the nature of the job and the safety sensitivities of that job. Even though the ADAAA does not require an accommodation based on marijuana use, it does require accommodations related to a covered disability.
Employers are encouraged to review the written job descriptions in their organization and determine which jobs are safety-sensitive jobs. These job descriptions should be updated and clearly state their safety-sensitivity. Employers are also encouraged to review their employee handbook to ensure it is up-to-date with prohibitions against the use and possession of medical marijuana during working hours and at the workplace as well as defining testing procedures for reasonable suspicion.
Employers are also encouraged to recognize the importance of documentation if an employee is terminated or disciplined due to a violation of a drug policy. The documentation should clearly state the decision and the rationale for the decision and expectations from that point forward. This document should be explicitly spelled out so that if this document were to be used at a later point in a court of law, it would be clear.
It’s important to note that federal law does not necessarily hold more weight than state laws, however, legal decisions regarding the federal law prohibiting the use of marijuana are still being upheld in some cases.
In the case of Coats vs. Dish Network, the federal law was upheld even though Colorado is a state that has legalized both medical and recreational marijuana. In this 2010 case, the employee, Coats, was given a random drug test that tested positive for marijuana. Dish Network had a zero-tolerance policy for drug use and terminated Coats. He then sued Dish Network however the case was dismissed citing the fact that even if marijuana is legal under Colorado law, it is not a legal activity. In June of 2015 the Colorado Supreme Court upheld the ruling of the trial court and ruled that an employer is still permitted to terminate an employee who engages in activity that violates federal law. Therefore, precedence has been set that drug testing and subsequent termination for positive results is still legal. (Marijuana in the Workplace: A Hazy Issue for Employers, Rachel E. A. Atterberry, September 18, 2015)
Conflicts between federal and state laws are not new and, for many employers, the guiding principle has been to “err” with the law that provides the most protections for the employee. In the case of medical marijuana, there is a tension between the protection of an employee and the protection of the organization’s employees as a whole while maintaining productivity in the organization.
Due to the shifting tide of laws regarding medical marijuana use in the United States, employers are encouraged to keep abreast of the changes in law and review their organizational drug policies in light of those changes. Whatever policy an employer determines is in the best interest of both the organization and the employees, employers are encouraged to realize the importance of providing training for their managers so that they may recognize early indications of employees may be under the influence of drugs.
Written by: Kathi Walker, PHR
New Focus HR, LLC