Armanino Blog

Marijuana in the Workplace - Clearing the Smoke

by Lisa Hagen
March 16, 2018

Since 1996, 29 states and the District of Columbia have legalized medical marijuana. There are currently nine states, as well as DC, that have adopted laws legalizing cannabis for recreational purposes. As the use of marijuana, both medically and recreationally, increases in the United States, employers should review their policies—specifically regarding drug testing, company policies and state/federal compliance.

The states with legalized use and possession of recreational marijuana have certain exemptions for workplace policies. Employers are still entitled to maintain a drug-free workplace, as well as the right to drug test. For those employers who do require drug testing, a positive test is only indicative that marijuana has been used at some point. However, routine tests for marijuana usage often yield false positives, as marijuana tends to stay in the bloodstream longer than other substances.

Multistate employers should look at the laws of each of the states where they employ workers. At a minimum, employers should have clear policies included in handbooks or as a separate policy document, laying out the company's policies (and consequences) for drug testing of applicants and employees, as well as how they will treat medical/recreational use of marijuana in the states where it is legal. All employees should acknowledge receipt of the policy.

This much is clear: Marijuana is still illegal federally. It remains a Schedule 1 drug and is prohibited under the Controlled Substances Act. Legal issues around the use of marijuana must be addressed on a state-by-state basis. There is no one-size-fits-all answer here―it's still rather hazy. Some employers may think that the best test is to observe employees to see if they are impaired, following up with a write-up or termination, if needed. Due to the ease of obtaining a prescription for the medical use of marijuana, this is also risky; employers should exercise caution and seek counsel before taking action.

Educate yourself on the laws in the states where you operate. It is always wise to seek expert advice and legal council prior to finalizing company policies. Once the policies are in place, be sure to train managers and supervisors on how to deal with potential impairment on the job. As long as the policy is clear, and the enforcement is consistent, none of your workers should be dazed and confused.

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