Employers Must Navigate Patchwork of Marijuana Laws

Employer testing for THC

Employers Must Navigate Patchwork of Marijuana Laws

Christopher A. Parrella, J.D., CHC, CPC, CPCO

As more states legalize cannabis for medical use, recreational use, or both, many companies are struggling with how to regulate compliance in the workplace. The patchwork of laws across 50 states is, at the very least confusing and, taken to its conclusion, could lead to costly litigation.

For example, the New York City Council last month overwhelmingly approved a bill that, if signed into law by the mayor, would prohibit most employers in the city from forcing job applicants to take drug tests for marijuana use. However, there are some exemptions for certain jobs including law enforcement, construction, and those that require supervision of children or medical patients. Also, if an employee appears to be under the influence while on the job, an employer may test them.

In Maine, a law passed last year prohibits employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.” On the other hand, the law includes protections for employers in that they are not required “to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of cannabis in the workplace.”

And, in Oklahoma, employers are prohibited from discriminating or punishing an employee or refusing to hire applicants based on their status as a medical marijuana card holder or for a positive drug test for marijuana or its components. However, employers can prohibit workers from using or possessing marijuana on premises, or from working while under the influence of marijuana or marijuana products.

Some employers, regardless of what the law states, have decided on their own that testing for pot no longer is practical or needed.

To further complicate things, under federal law, marijuana is listed as a Schedule I drug under the Controlled Substances Act, making its use illegal and cause for termination. However, there are several moves afoot that could change that.

Last month, Colorado Rep. Diana DeGette filed legislation (Respect States’ and Citizens’ Rights Act), that would amend the Controlled Substances Act to exempt states’ laws legalizing marijuana from federal intervention. And, in March, Florida Congressman Charlie Crist and Arkansas Congressman Don Young co-sponsored legislation (Fairness in Federal Drug Testing Under State Laws Act), that would protect veterans’ cannabis treatment options and their ability to be employed by the federal government

Although the laws about marijuana use can be confusing, what is clear is that employers are facing new legal challenges each day. While some courts have sided with employees, others have sided with employers, even when workers were using cannabis legally or for medical purposes. To decrease the chances of litigation, employers should have a well-defined policy on marijuana use and testing.

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