It was a banner year for marijuana-use advocates as a number of states passed laws in November that approved its medical or recreational use. It also creates new challenges for employers as they develop drug-free workplace policies.
Arkansas, Florida and North Dakota approved the medical use of marijuana while Montana voted to expand an existing law, bringing the total number of states with legalized medical marijuana to 28. California, Massachusetts, Nevada and Maine also legalized the use of recreational pot.
Whether it’s medical or recreational use, each type of state law poses different challenges to employers as they develop their drug policies, said Kathryn Russo, an attorney with law firm Jackson Lewis and an expert on workplace drug testing and substance abuse.
“With medical marijuana, presumably, the employee is disabled and that raises discrimination issues if the employer refused to accommodate, so it’s trickier and more complex,” she said. “With recreational marijuana, I think it’s less complicated to administer policies because we’re not dealing with disability issues anymore. Employers can treat it like alcohol and prohibit its use. But it does get tricky with drug testing.”
In the case of recreational pot, most state laws have provisions protecting an employer’s right to create a drug-free workplace, she said.
California law states “that it does not alter or amend the rights and obligations of public and private employers to maintain drug- and alcohol-free workplaces and to have policies prohibiting the use of marijuana by employees and applicants. It further does not require employers to permit or accommodate the use of marijuana in the workplace, or prevent employers from complying with state or federal law.”
Things get murky for employers that implement drug testing.
“People might think, ‘Oh I can do whatever I want now. I can smoke all weekend,’ and the problem is that you don’t know if someone was using drugs while off duty or on duty,” Russo said. “That’s a dilemma for employers who conduct drug testing. You need to look at your policies and figure out what you want to prohibit and be very, very clearly about it. You can put employees on notice that if they want to do this on your own time that’s fine but if they test positive at work there will be consequences.”