Life After Legalization: How Employers Can Deal With Marijuana in the Workplace

Managing marijuana use by job applicants and employees, not to mention navigating the complex patchwork of federal, state and local laws that often send confusing and conflicting messages, has left employers feeling a bit hazy, according to a new XpertHR report.

Marijuana has been legalized for recreational use in multiple states including California and Colorado, and more than half of the states permit the use of medical marijuana. Employees may mistakenly believe that if marijuana is legal in their state, they are free to use it without

It’s important for an employer to understand the marijuana laws that apply to its workplace.

consequence especially if it is after working hours and during their own free time. However, under federal law, marijuana use for any purpose is still illegal.

Some states protect an employee’s right to use medical marijuana and some state laws prohibit employers from disciplining an employee for a positive marijuana test alone if the employee is a certified medical marijuana patient. Employers must understand the various laws while at the same time managing and maintaining a safe, efficient and productive workforce, the XpertHR report states.

“Marijuana use still creates a great deal of risk for employers. Employees who use marijuana may have increased inattention, increased absenteeism and tardiness, and may be less efficient or productive in performing job-related tasks,” says Beth Zoller, JD, Legal Editor, XpertHR. “Drug-related accidents and injuries may lead to increased insurance costs and premiums, increased workers’ compensation claims and reduced profits.”

Most state marijuana laws do not protect medical marijuana users or their caregivers from arrest or prosecution for being under the influence of marijuana while:

  • Operating a motor vehicle;
  • Being in a workplace or place of employment; and
  • Operating heavy machinery or dangerous equipment.

Most state medical marijuana laws also permit an employer to ban marijuana use at work and prohibit all employees from working under the influence of marijuana. Further, some states may have requirements regarding pre-employment testing for marijuana, the report explains.

States vary on whether medical marijuana users will be protected from discrimination for off-duty use of medical marijuana and whether an employer will be required to provide a reasonable accommodation.

None of the recreational marijuana statutes contain employment protections for recreational marijuana users, and no states limit an employer’s right to enforce a zero-tolerance marijuana policy.

The report addresses this controversial issue, and notes that it’s important for an employer to understand the laws that apply to its workplace. Key questions that will help an employer determine how to approach marijuana use by employees and applicants include:

  • Does state law permit medical use? Recreational use?
  • Are there additional requirements with respect to providing reasonable accommodations to employees with disabilities who may be medical marijuana users?
  • Does the employer have employees working in safety-sensitive positions?
  • Is the employer subject to the Drug Free Workplace Act?

“Legalization efforts have not slowed, and marijuana use in the United States continues to rise,” says Zoller. “Employers are in a precarious situation when tasked with maintaining productivity and safety in the midst of surging marijuana use. And unlike other drugs, marijuana’s unique position between legal and illegal makes it crucial for employers to understand the laws, address them in workplace policies and promote a drug-free workplace.”

To download a copy of XpertHR’s guide to Marijuana in the Workplace, visit XpertHR.

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