At this moment, 23 states and the District of Columbia have legalized marijuana for medicinal use, and Washington and Colorado have famously legalized the plant for recreational use, too. Alaska and Oregon will become the next states where recreational marijuana is legal after voters approved cannabis ballot measures set to become effective in 2015. Under federal law, however, recreational use of the drug remains illegal, pitting employers’ drug-free workplace policies against workers whose marijuana use is, under state law, perfectly legal.
Workers who are using any kind of chemical or pharmaceutical to treat a medical condition should take the following precautions:
Do you have to hire or retain marijuana users?
Generally speaking, employers in states with medical marijuana laws can still prohibit marijuana use in the workplace. Employers with “zero tolerance” workplace substance abuse policies can rely on the illegality of marijuana under the federal Controlled Substances Act, even if individuals using medical marijuana may be released from criminal liability under state law.
Only three states—Arizona, Connecticut, and Rhode Island—have codified specific protections for employees while they are at work.
Do disability laws protect medical marijuana users?
Workers who legally use medical marijuana are not protected under the federal Americans with Disabilities Act (ADA), because such protection would be at odds with the federal Controlled Substances Act.
Because of this, the 9th Circuit Court of Appeals has held that the ADA does not protect against discrimination based on medical marijuana use, even if that use is in accordance with state law authorizing such use.
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Marijuana use, impairment, and the drug-free workplace
If you have employees who have identified themselves as medical marijuana users—and you have a drug-free workplace policy—tread carefully. Bear in mind that the drug stays in an individual’s system for an average of 13 days after use, so a worker can test positive for marijuana without actually being impaired.
If you can show that an employee was impaired when the drug test was administered (the test showed elevated levels of drug use consistent with impairment, or you had a reasonable suspicion of impairment based on the employee’s appearance or behavior), you will most likely be able to prove the employee violated your drug policy.
Symptoms of impairment include (but are not limited to) effects on speech, walking, or appearance, carelessness, and involvement in an accident. Document any effects you observe that suggest a worker was actively under the influence of marijuana at the time of testing.
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