Medical Marijuana in the Workplace: A Guide for HR

In 1996, California became the first state to legalize medical marijuana. Today prescriptions for cannabis are being written in 33 states, 10 of which have joined the District of Columbia in also allowing recreational use.

• While the national trend is clearly moving toward legalization, less certain is whether and to what extent employers are choosing to accommodate medical marijuana in the workplace.

Complicating matters is the fact that marijuana is still illegal under federal law, meaning medicinal use is not covered by regulations such as the Americans with Disabilities Act or Family Medical Leave Act.

Companies may think they can play it safe by continuing to enforce zero-tolerance drug policies, but such hardline positions could put them at risk of failure-to-hire and wrongful-termination claims.

When determining the most appropriate policies, there are a couple things employers should keep in mind.

Learning the laws around medical marijuana

Any decision on medical marijuana policies should begin with a close look at your own state’s relevant regulations and court decisions.

• Some states that have decriminalized cannabis have also legislated certain employment protections, including making it illegal to penalize or terminate employees for using the drug outside the office.
• Other states explicitly allow employers to fire workers who test positive for the substance, even if it is only being used medicinally and during off-hours.
• In states that do not specify whether employment can be terminated over valid prescription use, courts have been left to decide the matter.

Despite the continued federal prohibition of marijuana, an employer’s drug-testing and screening practices also have to comply with the laws in their state, and possibly neighboring states.

If you operate in a state where medical marijuana is not legal but have employees who commute from states where it is permitted, you’ll need to familiarize yourself with their state regulations, as well.

Rolling medical marijuana into existing drug policies

In states where it is legal, employers should treat medical marijuana like any other prescription drug, neither stigmatizing nor minimizing its effects.

• To that end, employers should take seriously all employees with requests to accommodate marijuana’s medicinal usage if they have a prescription from a doctor.

By that same token, companies should also stress that workers do not have a right to be impaired by any substance while on the job.

This is especially true in the case of safety sensitive roles, in which it must be made abundantly clear that marijuana is included among the list of prescription drugs that influence an individual’s ability to operate heavy machinery and perform other critical tasks.

Employees must be able to perform to the company’s expectations, especially if the worker’s impaired judgment could put others in physical danger.

To craft a fair and legally sound HR policy concerning medical marijuana in the workplace, employers must:

• 1) Familiarize themselves with the specific medical marijuana laws governing every state they or their employees operate in
• 2) Create consistent policies that treat medical marijuana like any other powerful and potentially impairing prescription drug

Once codified, your company’s policies and expectations should be clearly communicated to new hires in any offer letters. All employees and supervisors should also be made fully aware of the organization’s stances on drug and alcohol abuse, fitness-for-work, medical marijuana and testing.