First and foremost, any employer in a state that has a medical marijuana law, or has employees that live in a state with such a law, needs to read and fully understand the law.
Each state law is different and may include nuances that affect how an employee should deal with the issue.
Employers should also read and understand their individual states laws and legal precedents regarding drug testing of both potential and existing employees.
Virtually all states allow for pre-employment screening drug testing, including for marijuana. Some states do not allow for random drug testing of existing employees for invasion of privacy reasons, but most states do allow for ‘reasonable suspicion’ drug testing, including suspected impairment from being under the influence of marijuana or other substances at work such as the employee’s appearance or behavior.
Next, based on the laws in their state and the decision of the employer, a company policy must be developed in writing about the use or influence of medical marijuana on the job and then the company must comply with that policy.
There are a few policy options.
The first option is to allow employees with legal medical marijuana cards to use the drug at work.
This is an option which very few companies choose. The most obvious reasons for not choosing this option are that it impacts productivity and could pose a risk to others. The reason the ADA doesn’t allow medical marijuana usage as a reasonable accommodation is that the usage is difficult to control because you don’t know from one session to the next what the reaction to the drug will be. There may be other more tangible issues with this option depending on the type of work done by the company and the requirements of its employees to operate machinery or interact with clients. If work is done by the company in multiple states it may be the case that medical marijuana is legal in one but not the other. Additionally, if any work is done for the federal government or on federal property, that may cause an issue such as loss of contract due to the federal status of the drug. The employee may not be able to be prosecuted but that doesn’t mean the company may not face consequences.
The second option is to adopt a policy that simply states that the company does not tolerate the use of or being under the influence of any illegal drug during the workday, including medical marijuana. This zero tolerance policy, if applied equally and in all cases, allows the employer to not hire a prospective employee or fire a current employee for testing positive for marijuana or for being under the influence of marijuana at work, medical or otherwise. The policy must be in writing and it must be applied equally. This option may seem heartless when dealing with real people with real medical conditions that are being helped with the use of medical marijuana, but it does protect the good of all the employees by removing a potential workplace risks. This choice also protects the company from potential litigation that may arise from allowing an employee to work while under the influence. Many companies choose this policy option.
The third option is a hybrid of the first two and is subjective in nature. The policy includes the language of the zero tolerance policy but adds a statement such as if the employee has a condition for which he or she is being treated with medical marijuana, the company should be engaged to discuss any possible accommodations. This leaves the door open to employers working with employees to find a way to get the work done that won’t interfere with the employees ability to perform and allow them to be productive. It should be noted that the employer is not obligated to do any particular accommodation that the employee asks. For instance, the employer may still disallow the use of medical marijuana at work even though the employee wishes to, but may change their work schedule to accommodate the times they need to medicate and be under the influence. The subjective nature of this option, and its application, does leave the employer open to potential litigation and employee discord while the other two options do not. Also, the type of work and clientele of some companies would not allow for such flexibility. However, many companies have adopted such a policy with success.
As with the issue of medical marijuana use itself, the question of how employers should deal with its use is complicated. It requires research, soul searching, and decisions that are in the best interest of the company and its employees.
One thing is certain, the issue cannot be ignored.
As more states pass legalized medical marijuana legislation and the number of patients increase, more and more employers will need to address the issue and the requests from their employees. No matter how the employer chooses to manage the issue, it is the time to get ahead of the matter, adopt and adhere to a policy, and understand that it’s a brave new world.
Brian Laslow is the author of The Marijuana Project: a novel about medicine and morality.
His book is a fictional account about a security consultant’s ethical controversy and experience with a medical marijuana client. It explores both sides of the medical marijuana debate and security issues surrounding the industry, all in the setting of a suspense novel.
Brian is an independent security consultant and has been in the security industry for over 30 years. He is an expert speaker in the field of security and holds multiple certifications in the security and consulting fields.
More information can be found at www.themarijuanaproject.org