High Times for HR: What Marijuana Reform Means for Your Drug Policy
A few employees decide to grab drinks at happy hour after work on Friday. As their employer, when it comes time for work on Monday, would you be inclined to give them a sobriety test? Now what if instead of drinks, they smoked a joint? For marijuana proponents, these situations are analogous. With state medical marijuana laws becoming increasingly tolerant and some states making it recreationally legal what changes, if any, should you be making to your drug policies? Legally, this is still a murky area for employers. Let’s talk about the nuances of weed and the workplace.
As of now there are 25 states and District of Columbia that have legalized medical marijuana, and four states and DC that have legalized recreational use. If you live in one of the four states with legal recreational weed, smoking a joint is as ubiquitous as drinking a beer. Companies with drug-testing policies argue, however, that employees who use marijuana add to turnover, absenteeism, health care costs, safety issues and performance problems. The use of medical and recreational marijuana is still illegal on a federal level and therefore unprotected by the Americans with Disabilities Act.
While it goes without saying that most employers don’t want their employees coming into work impaired by any substance, a grey area emerges when it comes to drug testing and medical marijuana. If your company screens an employee and the result is positive for marijuana, that doesn’t necessarily indicate impairment. Marijuana can stay in a person’s system for 30 days or more, and that positive result may not be due to abuse, but in fact, due to medical use. Traditional prescription drugs can stay in a person’s system equally as long; would you punish an employee for testing positive for their prescribed pills?
The key distinction for employers with drug testing policies is that currently the US Government does not recognize medical marijuana and has maintained it as a Schedule I drug. Barring upcoming decisions of a few major court cases, the law presently sides with the employer to terminate an employee for a positive drug test if they maintain a zero tolerance policy and previously specify consequences within that policy. To avoid messy legal issues and eliminate employee confusion, employers need to specifically address medical marijuana in their policies.
The earlier conundrum of whether it makes sense to equate drinking alcohol to smoking a joint touches on how far you’re willing to go in policing what your employees do in their personal time. With HIPAA (Health Insurance Portability and Accountability Act) you must be careful about requiring employees to disclose personal medical information, which includes prescriptions for medical marijuana if it’s legal in your state. With all the subtleties in workplace drug policy and the increasing legality of lighting up, it’s more important than ever to review your carefully crafted policies before they go up in smoke.