Marijuana is not viewed today the same as it was 20 or even 10 years ago.
Consequently, modern businesses should be aware of legal complications that might affect their businesses with regard to employee marijuana use and drug testing. Read on to learn more about medical marijuana use and the legal implications of its use for your business:
Modern Medical Marijuana Usage
Californians voted to legalize medical marijuana over 20 years ago, in 1996. Flash forward to now, and at least 33 additional US states also have a comprehensive medical marijuana program. Colorado and Washington legalized cannabis for recreational use in 2012, then nine other states, including Washington, D.C. followed suit. The use of marijuana has evolved in recent years even more, which has led to many businesses simply not knowing how to handle its utilization.
Legal Implications Surrounding Marijuana Usage by Employees Can be Complicated
For years, courts ruled that employers could have zero-tolerance policies and fire, or not hire, based on positive marijuana tests. That has been changing; however, on a case-by-case basis, as businesses aim to avoid lawsuits due to a positive marijuana test. This being said, these facts still remain consistent:
- Marijuana is still illegal under federal law.
- Regardless of state law, federal rules require substance testing, this includes marijuana usage by specific employees, such as truck drivers. Companies with federal contracts and grants, as well as federal agencies, must have a drug use policy that is properly enforced.
In many states, reasonable-suspicion tests often still include marijuana. However, the last thing any business wants is to test someone only to have said test come back negative and an employee who wants to file a lawsuit.
Under FMLA, Do Employees Have the Right to Use Medical Marijuana?
Nothing within FMLA regulations ensures that an employee has the right to use medical marijuana during leave. Therefore, the use of marijuana while on leave from work will depend instead on the applicable state law.
What Can You Do to Protect Your Business From Marijuana-Related Claims?
Obviously, the use of marijuana for medicinal purposes is an issue you have to address, especially with the use being made legal throughout the country. Of course, you need to protect your business from any marijuana-related claims, such as those filed after testing an employee whose results come back positive or something pertaining to a disability and the need for medical marijuana usage. The following are some actionable steps you can take to keep your business as safe as possible when dealing with marijuana-related claims and issues:
- Revise all employee handbooks, drug testing policies, and procedures to accommodate disabilities. Seek qualified legal counsel when taking this step to ensure that you have covered your bases well with regard to this issue.
- Communicate and adopt consistent drug testing policies and then enforce them consistently. Testing should always be fair and regular and not targeted to only certain employees.
- Carefully consider medical marijuana-related accommodation requests. Don’t automatically assume every employee lobbying for marijuana usage is doing so for recreational use. Sometimes, there are situations where medical marijuana can actually improve employee health and enable them to keep working. Be mindful of these situations and understand what employees deserve to prove their case.
Bottom Line: Medical Marijuana Can Have Many Legal Implications for Your Business
In some states, firing or otherwise sanctioning an employee for taking a legal drug can result in a discrimination lawsuit. In states that have disability laws, employers may need to engage in an interactive process to determine if reasonable accommodations can be made. This is particularly true if the medical marijuana cardholder has an independently qualifying medical condition.
Laws and regulations change from state to state, and this is a sensitive, ever-changing topic. So it is best to seek guidance from professionals. Contact Winter-Dent today to start a conversation on this important topic.